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The discussion of Massachusetts v. EPA is well underway thanks to David’s summary of the action. I’m going to provide some thoughts about each of the three issues involved in the case, as well as some of the possible implications.

The outcome of Mass. v. EPA boils down to one thing: the Supreme Court has ordered EPA to think again. While that may not sound like much, in the world of administrative law, it is a total rout for the Bush administration.

While the outcome is good news, this decision was as close as they come. I’m not surprised that the Court split 5 to 4 on the issue of standing. However, this divide extended to all three questions before the court.

First, a quick refresher on the three issues:

Did the petitioners (that’s Mass., the other states, and the environmental groups) have standing to file suit? Does EPA have the authority to regulate greenhouse gases under the Clean Air Act? Did EPA properly decide not to regulate even if it has authority?


This was the question that kept many of us interested in environmental law up at night. Nothing like tossing and turning, wondering if Massachuset... Read more

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  • Judge refuses request for a closed courtroom in global warming case

    You may have heard about efforts by the motor vehicle industry to invalidate state laws restricting greenhouse gas emissions from cars and trucks. California crafted a rule, other states adopted it, and the industry filed suit.

    It's a legal argument that stretches back to 2005. And with three active cases -- in California, Rhode Island, and Vermont -- it's not going away soon.

    In a dramatic new twist, the industry asked the court in the Vermont case to hold most of the trial in secret.

  • The Supreme Court considers an extortion suit against federal land managers

    The Supreme Court heard argument in a curious case this week. No, I'm not talking about the celebrated "Bong Hits for Jesus" case. The second case on Monday's docket involved an Alabaman turned Wyoming rancher claiming that government bureaucrats had engaged in extortion by enforcing the letter of the law.

    An appellate court in Denver, Colo., ruled that Harvey Frank Robbins (the rancher) could sue Charles Wilkie and other Bureau of Land Management employees under the Racketeer Influenced and Corrupt Organizations Act (also known as RICO) -- a law used to prosecute mobsters involved in organized crime.

    Now the chance for the Supremes to weigh in, and maybe hint at what they're thinking ...

  • Justices agree to hear Defenders of Wildlife case

    Environmental law appears to be a hot commodity in the Roberts Court. While the justices continue to deliberate about global warming, they agreed (PDF) on Friday to add another hot-button environmental issue to their agenda: the Endangered Species Act.

    Setting the Stage

    The case, Defenders of Wildlife v. EPA, also implicates the Clean Water Act (CWA). Under the CWA, a would-be polluter needs to get a permit before it discharges into our nation's waters. The CWA requires that the federal government delegate permitting authority to the states, if they meet a number of requirements.

    Today, almost every state issues its own permits. (EPA provides this map [PDF] illustrating which states have permitting authority.)

  • Do federal courts have jurisdiction in Massachusetts v. EPA?

    As the court-watchers (or even dabblers) amongst you are aware, the justices of the U.S. Supreme Court seemed preoccupied with the issue of standing during the recent oral argument in Massachusetts v. EPA. This debate has echoed in the blogosphere.

    • Jonathan Adler argues, both on Volokh Conspiracy (it's a bit buried) and in an amicus brief (PDF), that global warming causes nonjusticiable, generalized injuries.
    • Grist's own David Roberts questions whether a court order can provide Massachusetts with any relief.
    • The Sierra Club's Executive Director, Carl Pope, believes that an adverse standing decision would have an enormous negative impact on environmental litigation.

    In this post, I'm going to try to break down the arguments a little.