Litigation
Commerce Clause Challenges and State Climate Policy
As Rick previously blogged, the U.S. District Court for the Eastern District struck down California’s Low Carbon Fuel Standard (LCFS) last month on the grounds that the standard discriminates against out-of -state ethanol producers in violation of the Commerce Clause of the United States Constitution. The decision — Rocky Mountain Farmers Union v. Goldstene — is …
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CONTINUE READINGPreemption and Prescription Drugs
I’ve been reading a lengthy history of the FDA by Harvard political scientist Dan Carpenter. I’m planning to post later about some his observations regarding the political dynamics of drug regulation. But I was also struck by the implications of his description of drug regulation with regard to preemption of state torts claims. At first …
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CONTINUE READINGFederal Court Invalidates California’s Low Carbon Fuel Standard
U.S. District Judge Lawrence O’Neill has ruled that the California Air Resources Board’s pioneering Low Carbon Fuel Standard, a key component of California’s multifaceted strategy to reduce the state’s aggregate greenhouse gas emissions under AB 32, is unconstitutional. In his December 29th ruling in Rocky Mountain Farmers Union v. Goldstene, the Fresno-based federal judge issued …
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CONTINUE READINGCalifornia Supreme Court Upholds Abolition of Local Redevelopment Agencies
The California Supreme Court waited until the very end of 2011 to issue the year’s most important land use decision. While the specific issues relate to arcane issues of public finance and state constitutional law, today’s decision in California Redevelopment Association v. Matosantos is likely to have major consequences for local land use authority and …
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CONTINUE READINGThe First Federal Environmental Law Decision
Of course, it’s a bit arbitrary to pick one case as the first environmental law decision. Many people would probably name the Scenic Hudson opinion, but my nominee would be a decision many decades earlier: Woodruff v. North Bloomfield Gravel Mining Co., 18 F. 753 (C.C.Cal. 1884). What makes it reasonable to call this the …
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CONTINUE READINGSupreme Court Grants Review in Criminal Environmental Enforcement Case
The U.S. Supreme Court is obviously interested in environmental enforcement, or at least the legal issues arising out of environmental enforcement cases. Today, the Supreme Court granted certiorari in a second environmental enforcement case it will hear and decide in its current Term. Southern Union Co v. United States, No. 11-94. This follows the justices’ …
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CONTINUE READINGKivalina and the Courts: Justice for America’s First Climate Refugees?
It’s hard not to sympathize with the Native Alaskan inhabitants of the Village of Kivalina. The 400 residents of Kivalina, a thin peninsula of land in Alaska jutting into the Chuckchi Sea north of the Arctic Circle, have the dubious distinction of being among the first climate refugees in the U.S. Their town is literally …
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CONTINUE READINGBeyond “NIMBY”
Brad Plumer has a thoughtful posting about NIMBYism over at WonkBlog. He points out that local opposition in Nebraska played a big role in getting the XL Pipeline delayed. More generally, Residents in Cape Cod have tangled up an offshore wind project for years, partly because it would obstruct scenic beach views. Solar farms in …
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CONTINUE READINGJunior appropriators can be cut off without a hearing
The Eighth Circuit has rejected a claim by farmers in Nebraska’s Niobrara Watershed that their civil rights were violated when the state’s Department of Natural Resources issued “Closing Notices” ordering them to stop drawing water. The farmers asserted that they were entitled to a due process hearing before the property rights granted by their state-issued …
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CONTINUE READINGTenth Circuit upholds Clinton-era Roadless Rule
You wouldn’t think courts would still be deciding, late in 2011, whether actions taken by the Clinton Administration were lawful. But they are. Late last month, the Tenth Circuit upheld the Roadless Rule for national forests issued at the very end of the Clinton presidency. The Roadless Rule, which largely prohibited road construction and timber …
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