Litigation
Conditional Spending and the Clean Air Act
Ann suggests that Chief Justice Roberts’ opinion today in Sebelius might open up the Clean Air Act to new challenges. That seems right, but it also seems to me that there are two key differences between Medicaid and the CAA/Highway Spending nexus. 1) Medicaid is an entitlement program; in other words, federal money flows more …
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CONTINUE READINGThe Health Care Cases: Instant Uninformed Reaction!!
1) Wow. On the specific issue here, I’ll take it. 2) Environmental lawyers will need to look at this decision very carefully. From an initial very quick parsing, it appears as if Chief Justice Roberts’ opinion has cut back the scope of Commerce Clause authority and under the Necessary and Proper Clause as well as …
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CONTINUE READINGDC Circuit 1, Roy Cohn 0
“I don’t want to know what the law is. I want to know who the judge is.” — Roy Cohn There’s one more important point about today’s per curiam DC Circuit ruling that should be emphasized: the composition of the panel. Two members were Clinton appointees: Judith Rogers and David Tatel. But the third was the …
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CONTINUE READINGSupreme Court Grants Review in Two Clean Water Act Cases From Ninth Circuit
This morning the U.S. Supreme Court granted certiorari in two high-profile Clean Water Act cases from the Ninth Circuit Court of Appeals. The justices simultaneously denied review in a major federalism decision, also from the Ninth Circuit, involving an industry challenge to a California Air Resources Board’s regulation requiring ships to use low-polluting fuels near …
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CONTINUE READINGSupreme Court Declares Juries Responsible for Assessing Criminal Fines in Environmental Enforcement Cases
The Supreme Court on Thursday handed down its third and final environmental law decision of its current Term. (The case, Southern Union v. United States, is also significant for being the first criminal environmental enforcement case in the Court’s history) In a 6-3 decision, the justices ruled that criminal penalties sought by federal prosecutors in …
CONTINUE READINGIn the Supreme Court’s Crosshairs: the Ninth Circuit’s Environmental Jurisprudence
All eyes will be on the U.S. Supreme Court this week, as the justices conclude their current Term and, among other things, issue their long-awaited decision(s) on the constitutionality of the newly-enacted federal healthcare law. But the Supreme Court also has some other, key decisions to make as to whether to take up four controversial environmental cases from …
CONTINUE READINGHow to Turn a Forest Into a Desert
Anyone familiar with the Supreme Court’s landmark decision in Massachusetts v. EPA will also know Georgia v. Tennessee Copper, the landmark 1907 decision used by the Massachusetts court to hold that states have standing to challenge EPA’s failure to promulgate climate change regulations. Courtesy of the Journal of American History, I have discovered that there …
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CONTINUE READINGNinth Circuit corrects itself on gold mining and the ESA
Cross-posted at CPRBlog. The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction …
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CONTINUE READING40 years hasn’t taught some agencies much
Cross-posted at CPRBlog. You would think that by now federal agencies would have the NEPA process pretty well down. After all, it’s been the law since 1970, requiring that every federal agency prepare an environmental impact statement before committing itself to environmentally harmful actions. And it’s not that hard to do. Agencies just have to …
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CONTINUE READINGLos Angeles’ Expo Line: A Cautionary Tale For Building Rail
This weekend, the long awaited Expo Light Rail Line will finally open in Los Angeles, connecting the traffic-choked Westside with the rest of the city’s rail network, more than two decades after the region’s first modern rail line opened. The relatively short light rail line (8.6 miles, 12 stations) took an absurdly long amount of …
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