To bring a lawsuit, a plaintiff must, before all else, demonstrate standing under the Constitution. Article III requires a plaintiff have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan and other U.S. Supreme Court decisions have clarified that cause-oriented organizations get no shortcuts; they must meet roughly the same standing requirements as individuals to bring lawsuits in federal court. A recent U.S. District Court for the District of Columbia decision, Environmental Working Group et al. v. Food and Drug Administration, exactingly applied those requirements to deny two environmental groups standing to sue, while at the same time signaling that D.C. Circuit organizational standing precedents should perhaps be reconsidered. Continue reading “No Matter the Cause, “Public Interest” Groups Merit No Shortcuts on Standing to Sue”
Over the past several years, state and local governments have become more aggressive regulators of free-enterprise activity. Some of those states and municipalities have taken action in areas that either federal law or the U.S. Constitution reserve for uniform federal regulation.
For instance, states like Washington and California have either adopted or are pursuing their own “net neutrality” rules after the Federal Communications Commission repealed a 2015 rule. Scores of states, cities, and counties have sued to impose controls on federally approved prescription pain medications that would be different from those required by the Food and Drug Administration. And mayors, county supervisors, and state attorneys general are racing ahead of the federal government with lawsuits aimed at regulating the global concern of climate change.
Another example of what we’ll call extreme federalism has been percolating in the Pacific Northwest for over five years and is now being contested in federal court. Continue reading “Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal”
Featured Expert Column – Environmental Law and Policy
by Samuel B. Boxerman, Sidley Austin LLP
Last month, the U.S. Department of Justice (DOJ) and the Environmental Protection Agency (EPA) separately issued informal guidance documents that could have a major impact on businesses enterprises’ environmental law and regulatory compliance. DOJ’s guidance relates to civil enforcement activities generally, while EPA’s involves environmental law enforcement at the state level under the rubric of cooperative federalism. Each document is explained below. Continue reading “Environmental Enforcement Implications from Recent DOJ and EPA Guidance”
Featured Expert Column – Environmental Law and Policy
In a recent decision in Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 15-17447 (9th Cir. Feb. 1, 2018), the U.S. Court of Appeals for the Ninth Circuit became the first federal circuit court of appeals to hold that discharges through groundwater to waters of the United States fall within the Clean Water Act’s jurisdiction. Depending on how other courts of appeals decide pending cases presenting similar issues, this case could be a seminal one, ushering in an era of expanded Clean Water Act permitting requirements and citizen suits. Continue reading “Ninth Circuit Blows Limiting Principle on “Point Source” Out of Water with CWA Ruling”
Last year, two WLF Legal Pulse posts (here and here) explored the federal government’s incremental expansion of control over privately owned agricultural property through the Clean Water Act (CWA) and the law’s hydra-like oversight of wetlands. Those commentaries presented one Erie, Pennsylvania farmer’s 30-year legal battle as a microcosm of how agenda-driven regulators can upset the balance between environmental protection and individual rights. Ironically, that balance empowers small and family-farmers’ contribution to another goal of green activists: sustainable local food production.
New information discovered from the legal battle against farmer Robert Brace reveals that his plight has been part of a broader, decades-long crusade led by a select group of environmental officials, with the active support of special-interest activists, to expand wetlands and challenge decisions by agriculture regulators. That campaign, and its success over the course of numerous presidential administrations, should not go unnoticed as the current regulatory reform effort, especially as it relates to “waters of the U.S.” (WOTUS), moves forward. Continue reading “When Assessing Burdens for Farmers, Other Landowners, White House Shouldn’t Duck Overhaul of Wetlands Regulatory Juggernaut”
By Andrew R. Varcoe, Boyden Gray & Associates, PLLC*
In recent years, some environmentalists and their political allies have pursued aggressive lawsuits and investigations as part of an effort to change public policy on climate change. These activities include civil lawsuits that some California municipalities brought last year, seeking compensation from energy companies for the costs of responding to climate change.
Earlier this month, one of the private defendants in the California lawsuits fired back in a surprising way. On January 8, 2018, the Exxon Mobil Corporation (“Exxon”) filed a petition in a Texas state court to obtain pre-suit discovery against officials of the California localities and their legal counsel. Continue reading “California Municipalities’ Climate-Change Litigation Against Energy Companies Takes a Surprising New Turn”
Can the U.S. government designate a private landowner’s property as “critical habitat” for a threatened or endangered species if the species does not currently inhabit the land and could not do so unless the property owner agrees to modifications of his land? The U.S. Supreme Court agreed this morning to address those questions by granting a petition for certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Services.
Washington Legal Foundation filed an amicus brief in support of the Petitioner, who was represented by past WLF publication author and program speaker Timothy Bishop of Mayer Brown LLP.
WLF has also published a number of commentaries on Weyerhaeuser on this blog, which are listed below.