Litigation
A Supreme Court Speed-Bump for Coeur Alaska
With the U.S. Supreme Court’s issuance of its major CERCLA opinion yesterday in Burlington Northern, the Court has now decided four of the five major environmental cases on its docket this Term. But a little-noticed order from the Court–also issued yesterday–suggests that the Court is struggling mightily with the fifth and final case, Coeur Alaska, …
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CONTINUE READINGNEPA: middle-aged, but still vigorous
The National Environmental Policy Act, which became law on January 1, 1970, is the oldest of the major federal environmental laws. It has been a model for environmental assessment laws in numerous states and other nations, but it still comes in for a lot of criticism at home. Some criticisms are surely justified. As Dan …
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CONTINUE READINGHas the Court Made it Harder to Prove Environmental Crimes?
Today’s Supreme Court decision relating to identity theft, Flores-Figueroa v. United States, may indirectly make it more difficult to prosecute environmental crimes. The decision suggests that the prosecutor might have to prove additional facts about the defendant’s state of mind in an environmental case, such as awareness that a given chemical is on a prohibited …
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CONTINUE READINGSupreme Court Narrows Hazardous Waste Liability
The Supreme Court decided an important Superfund case today, BURLINGTON NORTHERN & SANTA FE RAILWAY. CO V. UNITED STATES. The case narrowed a theory under which companies can be held liable for clean-up costs as “arrangers” of waste disposal. It also made it easier for lower courts to divide up liability between defendants, rather than …
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CONTINUE READINGUpdating the Delta litigation line-up
The era of collaboration and cooperation that CalFed briefly brought to management of California’s water system is well and truly over. Lawsuits are multiplying like rabbits, promising to provide full employment for water and natural resource lawyers in California for the foreseeable future. For those of you scoring at home, here are some of the …
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CONTINUE READINGNEPA and terrorism
To what extent does the Nuclear Regulatory Commission have to consider the threat of terrorist attack in the environmental analysis it undertakes for nuclear power plant licensing decisions? A March 31 decision from the Third Circuit, New Jersey Department of Environmental Protection v. Nuclear Regulatory Commission, creates a circuit split on that question. In the …
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CONTINUE READINGThe Omnibus Public Lands Management Act of 2009–A Macro and Micro View
I’d like to follow up on Sean Hecht’s recent posting concerning Congressional passage and President Obama’s signing into law of the Omnibus Public Lands Management Act of 2009. This massive bill designates two million acres of wilderness in nine states as permanently off-limits to development, and increases the number of river miles protected under the …
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CONTINUE READINGEPA asserts itself on mountaintop removal mining
EPA is finally flexing its muscle on mountaintop removal mining, taking on the Corps of Engineers and stepping in for states that have been reluctant to attack the practice. Mountaintop removal mining involves blasting the tops off of mountains, typically in Appalachia, to get at coal. The ecological problems are less about removal of the …
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CONTINUE READINGWas it worth it?
Sometimes environmental litigation becomes strikingly divorced from the underlying facts that give rise to it. And sometimes the hardest fought litigation seems to have the least impact on what the parties are ostensibly fighting about. When that litigation creates bad precedents that are difficult to reverse, you have to wonder whether anything of value has …
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CONTINUE READINGTime for NMFS to lead on hatcheries
Demonstrating once again the importance of presidential elections and appointments, the 9th Circuit has upheld the National Marine Fisheries Service’s policy on considering hatchery fish in listing Pacific salmonids. (Hat tip: ESA blawg.) Hatchery fish can be a boon or a bane to salmon conservation. Because hatchery programs have emphasized production of fish for harvest, …
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