States

What Next for the Climate Tort Cases?

Cases against the oil companies are back to state court. It’s time to map out the next steps.

With the Supreme Court’s refusal to take up the issue, the lawsuits against the oil industry are heading back to state court. That’s where the plaintiffs wanted those cases from the beginning, but it’s by no means the last of the issues they will confront.  The oil companies will fight a scorched earth campaign, spending …

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State Government Standing and Environmental Law

The Supreme Court seems to be cooling to the idea of empowering state AGs.

Massachusetts v. EPA, the cornerstone climate case, contains an extensive discussion of standing which opens by saying that lawsuits by state governments are entitled to “special solicitude.”  In the last few weeks of its term, the Supreme Court opined repeatedly on state standing. “Special solicitude” seems to be on the wane. Overall, I that might …

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After Sackett: A Multi-Prong Strategy

The Supreme Court’s wetlands opinion was terrible. Now what we do?

The Supreme Court’s opinion in the Sackett case dramatically curtails the permitting program covering wetlands.  We urgently need to find strategies for saving the wetlands the Court left unprotected.  We have a number of possible strategies and need to start work on implementing them immediately. Sackett was unquestionably a major blow, reducing federal jurisdiction over …

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Having the Fox Guard the Henhouse?

Delegating Environmental Reviews to Project Sponsors

One of the most important provisions, of the new NEPA law, § 107(f), allows the lead agency to delegate preparation of environmental reviews to project applicants. There are unsettled questions about when this provision applies and how it interfaces with other parts of NEPA. There are clear conflicts of interest in assigning this role to …

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Has the Supreme Court Declared Open Season on Interstate Commerce?

How to read a baffling Supreme Court ruling.

If you’re a lawyer or a lower court judge, you know you’ve got a problem when the Supreme Court’s opinion begins with a list of parts of the opinion that do or don’t have a majority, along with a list of what different permutations of judges said what about the issues.   The Pork Producers case …

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A Climate Trial in Montana Sets the Scene for More

Held v. Montana is the first of many climate lawsuits by youth plaintiffs to go to trial. Big Sky Country is a fitting forum for this phase of climate change litigation.

Young people who have the most to lose from climate change have filed lawsuits in all 50 states, but the first of these cases to go to trial will be in Montana—unofficially nicknamed “the Last Best Place”—which may be the perfect venue for a landmark trial about government culpability for the global climate crisis. Starting …

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New York’s New Environmental Justice Law

Unless amended or carefully implemented, there’s a risk the law could hurt the communities it’s meant to serve.

New York has enacted what may be the country’s most stringent environmental justice law.  The state deserves credit for its commitment to remedying the unfair pollution burdens placed on disadvantaged communities. The law is so broadly worded, however, that it  may have the potential to prevent economic development that would aid those communities, or even …

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Taming the Dormant Commerce Clause

A new Supreme Court opinion is good news for state climate regulators.

Although the Constitution does not say so directly, the Supreme Court has said there are implied limits on state regulations that interfere with interstate commerce.. This is known as the dormant commerce clause doctrine.  State clean energy laws have been bedeviled by challenges based on this doctrine. The Supreme Court has just made it easier …

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New York Adopts Cap and Trade

Yes, the new NY law includes some bans on natural gas. That’s far from all it does.

Last week, New York Gov. Kathy Hochul signed major climate legislation. Press coverage focused on one small piece of the legislation: a partial ban on natural gas use in new buildings.  That’s controversial and easily grasped by the public. But a much bigger part of the new law went almost unnoticed: the legislature’s endorsement of …

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Supreme Court Allows Major State, Local Government Climate Change Litigation to Proceed on Merits

Justices Decline to Intervene in Government Lawsuits Seeking Damages from Fossil Fuel Industry

This week the U.S. Supreme Court gave state and local governments a big–if preliminary–legal win against the fossil fuel industry.  The justices declined to take up numerous cases in which government entities have sued oil, gas and coal companies, seeking compensation for the climate change-related damage the jurisdictions they claim to have suffered, and which …

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