Litigation
Previewing the Supreme Court Oral Arguments in AEP v. Connecticut
On Tuesday the U.S. Supreme Court hears oral arguments in the only environmental case on its docket this Term: American Electric Power v. Connecticut. At issue in this critically important climate change case is whether a coalition of states, New York City and several private land trusts can pursue a federal common law nuisance claim …
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CONTINUE READINGWill AB 32 Regulations Move Ahead Despite the Court Ruling?
We’ve extensively covered the litigation over California’s landmark climate change law, AB 32. Now, per the Clean Energy Report, CARB might be able to move ahead with the cap-and-trade regulations anyway: the trial court might very well stay its decision pending appeal, which is not unheard of, and according to the state’s attorneys, occurs automatically upon …
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CONTINUE READINGBush-era EPA § 404 veto survives judicial review
A federal court in Mississippi has rejected a legal challenge to EPA’s 2008 veto of a Clean Water Act § 404 permit for the Yazoo Pumps flood control project. (Hat tip: PLF Liberty Blog.) The Yazoo Pumps project was an anachronism, even by pre-environmental era standards. (This brief history of the project is based on …
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CONTINUE READINGWhite House review delays EPA mountaintop removal guidance
Cross-posted at CPRBlog. EPA has announced that it will delay finalizing its guidance memorandum on Clean Water Act permitting for mountaintop removal mining projects pending review by the White House Office of Management and Budget. The announcement is bad news for Appalachian streams, and worse news for environmental interests hoping the Obama administration won’t completely …
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CONTINUE READINGA Risky FWS Proposal to Limit ESA Petitions
The Endangered Species Act has long been a lightning-rod for controversy. The last administration tried to significantly circumscribe the scope of the ESA in a wide range of ways (see, e.g, here). The Obama Administration up to this point in time has in general sharply contrasted with its predecessor in ESA management, including listing a …
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CONTINUE READINGRight on the Commerce Clause, wrong on the ESA
Cross-posted at CPRBlog. As Rick noted earlier, the Ninth Circuit is now the fifth federal circuit court of appeals to reject a Commerce Clause challenge to the ESA. In San Luis & Delta-Mendota Water Authority v. Salazar, a Ninth Circuit panel upheld protection of the Delta smelt. I agree with Rick’s analysis of the Commerce …
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CONTINUE READINGNinth Circuit Rejects Commerce Clause Challenge to ESA
Aligning itself with four other federal circuits that have addressed the question, the Ninth Circuit has ruled that application of the Endangered Species Act to California’s imperiled Delta Smelt doesn’t violate the Commerce Clause of the U.S. Constitution. San Luis & Delta-Mendota Water Authority v. Salazar (http://www.ca9.uscourts.gov/datastore/opinions/2011/03/25/10-15192.pdf ) is the latest chapter in the long-running …
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CONTINUE READINGMight recent events allow Governor Brown to consider a new direction for AB 32 implementation?
My colleague Jonathan Zasloff suggests that environmental justice groups are using litigation to try to get leverage for some sort of compensation or other measures, rather than to actually stop the state’s cap-and-trade program for greenhouse gases. I doubt that. But what I do wonder — with no evidence, but I can speculate wildly on …
CONTINUE READINGCan the Air Resources Board continue to implement measures to reduce greenhouse gases?
One interesting feature of the court decision preventing the state from moving forward with AB 32 is that the court’s decision seems to halt implementation of the entire scoping plan. As I’ll explain, this is an odd result, and one that may be legally required but doesn’t make practical sense. The legal flaw the court …
CONTINUE READINGName That CEQA Plaintiff!
The recent environmental justice lawsuit on AB 32 carried with it a typical CEQA characteristic: the plaintiff is a community organization formed for the purpose of a lawsuit whose name is usually a play on the issue. Thus, this case was Association of Irritated Residents v. CARB: “AIR,” get it? Cute. But not even close …
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