By Joseph Lounsbury, 3rd year GGU Law
On Monday, February 24, 2014, the United States Supreme Court heard oral arguments for a group of consolidated cases coined Utility Air Regulatory Group v. The Environmental Protection Agency, which will decide whether the United States Environmental Protection Agency’s (EPA) current structure for regulating stationary sources of greenhouse gases (GHG) under the Prevention of Significant Deterioration (PSD) permitting program is an acceptable use of agency deference. Specifically, the Court will rule on whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered PSD permitting requirements under the Clean Air Act (CAA) for stationary sources.
The case, beyond its crucial importance for future regulation of GHGs from large stationary sources, presents an unusual conflict between the deference normally afforded an expert administrative agency and explicit language in a statute. It puts environmentalists in a difficult position as to who to root for, as EPA is arguing that it has the right to ignore numbers in a statute because, if followed, these numbers produce absurd results. On the one hand, if EPA wins, greenhouse gases will be further reduced. On the other hand, allowing EPA to ignore specific statutory mandates might rebound against environmentalists in future litigation who challenge EPA’s statutory interpretation. Continue reading
Professors Ramo and Behles have published a new article about the Environmental Law and Justice Clinic’s case about Just Transition and the Mohave Generating Station. Follow the link here. Read about how an alliance of Sierra Club, Grand Canyon Trust and Hopi and Navajo grassroots organizations worked with the Clinic to direct an energy company’s acid rain credits to facilitate investment in renewable energy on tribal controlled land to transition communities from the impacts of the shutdown of the coal-fueled power plant.
By Joseph Lounsbury, GGU 3rd Year Law Student
As this Blog discussed in an October, 2013 posting, the recent Ninth Circuit Appeal Court Case, Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (C.A.9 (Cal.),2013), “virtually vindicated the California Air Resources Board’s (CARB) Low Carbon Fuel Standard (LCFS)” a key state global warming strategy. The Ninth Circuit panel rejected the district court’s notion that the LCFS was facially discriminatory under the doctrine of the constitutional Dormant Commerce Clause, and remanded back to the District Court to determine if in fact there was a discriminatory purpose and effect of this regulation.
The full Ninth Circuit, voting on a petition for rehearing en banc, on January 22, 2014, sustained the panel’s decision. Rocky Mt. Farmers Union v. Corey, 12-15135, 2014 WL 223797 (9th Cir. 2014)(Denial of Request for Rehearing). However, the denial was opposed by seven judges who authored a vigorous dissent. Judge Ronald M. Gould, the writer of the panel’s majority opinion, in a concurring opinion rejected the petition and characterized the dissent as “riddled with overstatements” and “alarmist rhetoric.” Notwithstanding these charges, the dissent is heated and Judge Gould conjectured that the dissent is aimed directly at getting the US Supreme Court to take the case. Continue reading
One of our SJD students, Shufan Sung, a member of both the California and Taiwanese bars, has co-written an excellent article entitled “Can Citizen Suits Help China Battle Pollution” in the January 8, 2014 Los Angeles Daily Journal about the evolution of citizen suits in China. If you think Justice Scalia at our US Supreme Court is tough on citizen suits, check out the Chinese government’s restrictions, though there is progress being made and some hope given their horrendous pollution problems. — Prof. Ramo
By Laura Horton, GGU Law Grad (2012), Wild Equity Institute Staff Attorney
[Note, on occasion we like to let alumni post about interesting topics as they are working on several interesting environmental law issues and it shows the diversity of their practices]
In October 2011, CUEL published a blog post about the plight of the Franciscan Manzanita, an evergreen shrub endemic to San Francisco that was once thought to be extinct in the wild. As the post described, a single Franciscan Manzanita plant was discovered in the Presidio in 2009, and native plant advocates rushed to secure protections for the plant. Later that year, environmentalists petitioned the U.S. Fish and Wildlife Service (“Service”) to list the Franciscan Manzanita as an endangered species. After the environmentalists sued over the Service’s delay in responding to the petition, the Service conducted a review and eventually added the plant to the endangered species list in September 2012. 77 Fed. Reg. 54434 (Sept. 5, 2012). Continue reading
My students and I have blogged about the problems and litigation involved with California’s cap-and-trade program, and in particular, the problem with offsets, most recently here. On November 14, the Los Angeles Times published an op-ed on the offset issues written by me and the ace analyst/organizer Janet Redmond from the Institute for Policy Studies, which can be retrieved here.
By Professor Alan Ramo
[1.7.14 UPDATE, the Supreme Court has decided not to take this case and has rejected CARB's petition for depublication]
We have been following the legal battle over the California Low Carbon Fuel Standard, initially in the Ninth Circuit Federal Court of Appeals, see our prior blog here. The battle is also taking place in state court.
In the case of Poet, LLC v. State Air Resources Bd. (2013) 218 CA4th 681, the plaintiffs argued that that California Air Resources Board failed to follow procedures under the state California Environmental Quality Act (CEQA) and the Administrative Procedure Act (APA) in adopting regulations implementing the standards. The appellate court agreed, but is allowing the regulations to be implemented while the ARB corrects the CEQA issues. Continue reading
By Tim O’Connor, GGU 2nd year law student
The Ninth Circuit on October 21, 2013 issued another ruling (see prior Professor Ramo article re Kivalina case here) restricting standing in climate change cases. In, Washington Environmental Council v. Bellon, a Ninth Circuit panel has now made it nearly impossible for a private citizen–or corporation in this instance– to directly enforce laws targeting individual emitters of greenhouse gasses (GHGs). The Court’s decision has all but said that it will not find for a private party based upon the ”causation” or the ”redressability” prong (required by the US Constitution’s Article III) until science advances to a point where a plaintiff could trace specific GHGs harm to a specific source. In fewer words, so long as GHG pollution is global and un-assignable to a specific creator, private parties cannot use the federal courts to enforce rules affecting only a de minimis number of polluters. Continue reading
By Prof. Alan Ramo and Tim O’Connor, 2nd year GGU law student
The Ninth Circuit’s decision September 18, 2013, reversing the Rocky Mountain Farmers Union District Court preliminary injunction, virtually vindicated the California Air Resources Board’s Low Carbon Fuel Standard (“LCFS”). It was also a resounding affirmation by the panel’s majority of California’s overall experiment in addressing climate change on the state level.
The background of this case is discussed in this blog back on January 31, 2012. In discussing the District Court’s staying of California’s pathbreaking program requiring fuels to have lower carbon intensity, the blog authored by Luthien Niland noted the larger picture that the “decision will significantly impact the ability of states to pass local laws to reduce GHG emissions.” The blog further stated: “From an environmental perspective, the best outcome should be the 9th Circuit’s (and possibly higher courts’) affirmation of CARB’s position that the LCFS is not discriminatory, but rather applies to all ethanol producers equally. By upholding the LCFS, the court would not only pave the way for California to meet its AB 32 goals, but also encourage other states to pass similar laws.” Ms. Niland’s forecast aptly states the nature and significance of the Ninth Circuit’s decision. Continue reading
By Prof. Ramo
Almost two years, this blogger wrote about President Obama’s decision to slow down what had been an accelerated review of President Bush’s 2008 ozone air quality standard. The blog noted that the standard, called legally indefensible by then EPA administrator Lisa Jackson, was contrary to the recommendation of EPA’s own Clean Air Science Advisory Committee (CASAC).
With President Obama’s decision to delay the standard, environmentalists had no choice but to continue their lawsuit challenging the 2008 standard. However, in a surprise and a disappointment to the environmentalists, the D.C. Circuit upheld the standard. In a per curium decision, Mississippi v. EPA (D.C. Cir. 2013), the Court parsed the words of the CASAC’s recommendation and found that it failed to clarify the extent to which its decision was based upon science and the extent to which it was based upon policy as to how much of a margin of safety to provide the public. Given that it may have been based upon a policy choice, EPA’s decision to reject the recommendation was subject to the arbitrary and capricious standard. Continue reading