Property Rights
Wetlands, the Clean Water Act & the Supreme Court: the Sacketts Return to Washington
Justices Grant Review (Again) in the Sacketts’ Longstanding Wetlands Battle With the Government
This week the U.S. Supreme Court agreed to hear the case of Sackett v. USEPA, No. 21-454, an important appeal involving the scope of federal authority to regulate wetlands under the Clean Water Act. If the Sackett litigation sounds familiar, it should: the case has been pending for well over a decade, and this is …
CONTINUE READINGA Sleeper Provision in the Senate Infrastructure Bill
The bill gives the Feds broad authority to authorize transmission projects.
We will need a much more robust transmission in coming years. Sources of renewable energy, such as Iowa wind farms, are often located far from the urban centers that need the power. Transmission also helps to deal with weather issues that may impact renewables: even if it’s too cloudy for solar in one state, the …
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CONTINUE READINGThe Illusions of Takings Law
Nothing is as it seems, when the issue is whether a regulation is a “taking” of property.
For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn …
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CONTINUE READINGSupreme Court Finds California Labor Access Regulation Works Unconstitutional Taking of Private Property
What Are the Implications of the Cedar Point Nursery Decision for Environmental, Natural Resources & Public Health Programs?
In a closely-watched property rights decision, the U.S. Supreme Court today held unconstitutional a longstanding California regulation allowing labor unions intermittent access to agricultural workplaces for labor organizing purposes. Reversing a decision of the Ninth Circuit Court of Appeals, a 6-3 Supreme Court majority ruled that the challenged regulation triggers a per se, compensable government “taking” …
CONTINUE READINGOffering “Carrots” to Protect the Amazon
Brazil asks for a billion dollars to slow deforestation. Would this be cooperation or extortion?
In March, US President Joe Biden invited the leaders of 40 countries to a virtual climate change summit, which takes place today and tomorrow. During the lead-up to this, many countries announced commitments of varying specificity and firmness to reduce greenhouse gas emissions. (I hope to write soon on the European Union.) Brazil’s position is …
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CONTINUE READINGMine! How the Hidden Rules of Ownership Control Our Lives
New book explores the hidden rules governing who gets what and why
For the last six years, Michael Heller and I have been writing Mine! How the Hidden Rules of Ownership Control Our Lives. It comes out today! We wrote the Doubleday book because we think everyone should have access to the handful of simple insights that can make us more effective advocates for change as consumers, …
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CONTINUE READINGConservative Judicial Activism Strikes Again
A wild-eyed misinterpretation of the commerce clause
A federal district judge ruled today that the federal government’s moratorium on evictions is unconstitutional. The judge’s theory is that evicting tenants for nonpayment of rent isn’t an “economic” activity. Therefore, it’s beyond Congress’s power under the Commerce Clause. I know that sounds nuts, but that actually it is what the judge said. The judge’s theory …
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CONTINUE READINGImplementing the “Biden Environmental Litigation Bounce-Back”
Encouraging Signals As To How Biden’s USDOJ Will Resolve Environmental Lawsuits Originally Brought Against the Trump Administration
The transition from the Trump Administration to the Biden Administration makes for fascinating spectator sport. President Biden’s first month in office reveals that he and his Administration are committed to undoing the widespread damage former President Trump and his minions engineered across so many policy and legal areas. The environment is a particularly prominent example. …
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CONTINUE READINGThe California Supreme Court’s Most Important Environmental Law Decisions of 2020
It Was a Relatively Quiet Year for Environmental Law in the California Supreme Court
[This is the third and final installment in a series of posts highlighting the most significant environmental law decisions of 2020. Earlier this week, I profiled the key 2020 environmental rulings by the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit. This post concludes the series with an examination of …
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CONTINUE READINGCalifornia Appellate Court Upholds Water Board’s Broad Drought Response Authority
Court of Appeal Rejects Water Users’ Legal Challenge to Board’s Emergency Regulations, Temporary Curtailment Orders
California’s Court of Appeal for the Third Appellate District recently upheld the State Water Resources Control Board’s temporary emergency drought response regulations–enacted in 2014-15–as well as related curtailment orders the Board issued to specific water users to implement those regulations. In doing so, the Water Board rejected a legal challenge agricultural water users brought against …
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