Litigation
The Death of the Facial Takings Claim
Last week, I reported a couple of recent appellate court opinions that grapple with the question of a “facial” takings claims — neither of them, in my view, very satisfactorily. The problem, as I see it, is this: a regulatory takings claim turns on the impact of a government regulation on the plaintiff. But since …
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CONTINUE READINGWolf delisting rule challenged in federal court
Yesterday, Alliance for the Wild Rockies, Friends of the Clearwater and WildEarth Guardians filed a compliant in the federal district court of Montana challenging the wolf delisting rider. You can check out a press release from WildEarth Guardians here. My previous posts describe the wolf delisting rider and the past litigation on the wolf delisting. …
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CONTINUE READINGWhat Is a “Facial” Takings Claim?
Interesting and frustrating new case out the 10th Circuit, Alto Eldorado Partners v. County of Santa Fe, which doesn’t appear to have gotten coverage from Takings lawyers and scholars and probably should. The case involved a challenge to Santa Fe County’s inclusionary zoning ordinance, and it carries potential important federalism issues; it also raises — …
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CONTINUE READINGThe New Public Trust Climate Cases
Per the New York Times this morning, a group of environmental organizations called Our Children’s Trust has filed a lawsuit against the state of California, arguing for protection of the atmosphere under the public trust doctrine (about which I blogged a couple of days ago). A few preliminary reactions after having read the complaint quickly: …
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CONTINUE READINGThe Public Trust Doctrine: A Prophet Without Honor
Michael C. Blumm and R.D. Guthrie of Lewis & Clark Law School have an interesting new paper soon to appear in the U.C. Davis Law Review, pointing out that the public trust doctrine has assumed enormous significance in the jurisprudence of several countries around the world, including India, Pakistan, the Philippines, Uganda, Kenya, South …
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CONTINUE READINGThe Mystery of Sierra Club v. Morton
Sierra Club v. Morton is rightfully viewed as one of the most significant environmental decisions in Supreme Court history. Although it hardly constituted a crimped or anti-environmental decision, it did go a long way to putting the brakes on environmental standing by ruling that the Sierra Club did not have the corporate standing to …
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CONTINUE READINGSolicitor General Katyal Flunks Supreme Court History
At least he did at the oral argument in Connecticut v. AEP yesterday: [Lawyer for the state plaintiffs Barbara] Underwood, pressed to cite past court cases that might show this particular lawsuit could work in court, had no close parallels to rely upon. Chief Justice John G. Roberts, Jr., had pressed her to come up …
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CONTINUE READINGSaving Public Nuisance
I agree with Rick’s take on the oral argument in Connecticut v. AEP — in fact, so much so that I predicted it three years ago! But if the Supreme Court overturns the Second Circuit on the viability of a federal common law claim, that actually makes the viability of state common law claims stronger. …
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CONTINUE READINGDamage Control for the States: Predicting the Outcome in AEP v. Connecticut
Yesterday I previewed Tuesday’s oral arguments in the U.S. Supreme Court’s American Electric Power v. Connecticut case, and two of my Legal Planet colleagues have already posted comments on certain aspects of those arguments. But let me cast discretion to the wind and predict the outcome of the case. Actually, it’s not that difficult a …
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CONTINUE READINGConnecticut v. AEP: The Judicial Power of the Purse
That’s not my phrase: it’s Jerry Frug’s. But it applies here. Rhead reports that in the Connecticut v. AEP argument, Justice Breyer, setting up one of his classic hypotheticals, wanted to know why a judge should not impose a $20-a-ton carbon tax as a judicial remedy. (Answer: because he can’t.) It’s not clear to me …
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