WLF Supreme Court Preview Briefing Delves into Cases and Petitions Affecting Free Enterprise

Our October Term 2018 preview aired live at 12:30 on September 18. Thomas Goldstein of Goldstein & Russell, P.C. moderated a panel that featured Professor John Yoo of UC Berkeley School of Law; Shay Dvoretzky of Jones Day; and Beth Brinkmann of Covington & Burling LLP.

Washington Legal Foundation has filed amicus briefs in four cases currently on the Court’s October 2018 docket and in support of five certiorari petitions:

Merits cases

Cert. Petitions

Relevant WLF Publication

Air & Liquid Systems Corp. v. Devries: Asbestos Litigation’s “Bare Metals” Defense Goes Before the U.S. Supreme Court

Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City

Big AppleBy Holton Westbrook, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

New York City recently suffered the latest loss in municipalities’ legal fight against climate change when the U.S. District Court for the Southern District of New York threw out the city’s attempt to hold BP, Chevron, ExxonMobil, and other oil companies liable for injuries allegedly caused by carbon emissions. The Big Apple has signaled its intention to appeal its loss to the U.S. Court of Appeals for the Second Circuit, but the trial court’s reasoning is well within the mainstream of judicial thinking on the issues at stake, and its ruling should be upheld. Continue reading “Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City”

Contract Dispute Cracks the “Thin Green Line” Activists Are Drawing to Stop U.S. Fossil Fuel Exports

obotA recent post here referenced the efforts of various activist groups’ and west-coast state and local governments—purportedly aimed at stopping foreign nations’ contribution to climate change—to create a “thin green line” against the export of coal and other fossil fuels.  As outlined in that post, Washington State officials refused to issue Lighthouse Resources several environmental certifications and permits needed for construction of an export terminal from which Montana- and Wyoming-mined coal would be shipped to customers in Asia.  A federal judge recently held that a lawsuit alleging that Washington’s interference with the terminal violated the U.S. Constitution could proceed.

But the effort to impede fossil fuel transportation is not limited to Washington.  After contracting with a developer to convert an old military base into a bulk cargo shipping center—the Oakland Bulk & Oversized Terminal (OBOT)—in 2016 the City of Oakland attempted to freeze the development because it learned that the center would primarily be used to facilitate the shipment of coal and other fossil fuels.  Continue reading “Contract Dispute Cracks the “Thin Green Line” Activists Are Drawing to Stop U.S. Fossil Fuel Exports”

A Haphazard Holding: Montana Supreme Court’s Ruling in Superfund Case Harms Commerce and the Environment

montana s ctBy Amanda Voeller, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Tension between uniform federal regulation and state-level action has become more prevalent recently, and a pending certiorari petition in the U.S. Supreme Court in Christian v. Atlantic Richfield Co., illustrates well this conflict.  In Atlantic Richfield, the Atlantic Richfield Company (ARCO) has asked the U.S. Supreme Court (with the support of a WLF amicus brief) to review and overturn a Montana Supreme Court ruling that creates extreme uncertainty for businesses by allowing state courts to supersede federal environmental regulations. Continue reading “A Haphazard Holding: Montana Supreme Court’s Ruling in Superfund Case Harms Commerce and the Environment”

Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements

dojenrdThe Justice Department’s (DOJ) policing of class-action settlements in recent months has the potential to serve as a significant check on the plaintiffs’ bar. While DOJ has had the right to express its view of proposed class-action settlements since 2005 pursuant to the Class Action Fairness Act (CAFA), only recently has the department’s Consumer Protection Branch exercised its authority to oppose such settlements. Washington Legal Foundation certainly applauds these efforts to intervene in and oppose frivolous, unfair, or inequitable class settlements, but what DOJ has done recently in several environmental citizen suits may be even more significant. Continue reading “Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements”

Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle

longview-coal-export-site-bv
Port of Longview, WA

In a March commentary, we appraised a legal challenge filed by two companies involved in the mining and delivery of coal against several Washington state officials for their role in blocking approval of a water-port terminal in Longview, Washington. The suit, which has attracted amici curiae briefs from neighboring states and other interested parties, took a step forward on May 30 when Judge Robert J. Bryan denied the defendants’ motion to dismiss. Continue reading “Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle”

Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach

sboxermanFeatured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP

In a recent decision, Upstate Forever v. Kinder Morgan Energy Partners, L.P., Case No. 17-1640 (4th Cir. Apr. 12, 2018), a panel of the U.S. Court of Appeals for the Fourth Circuit held that federal Clean Water Act (“CWA” or “Act”) jurisdiction extended to pollutants released into soil that then migrated through groundwater to a water of the United States.  Last, week the full court denied rehearing en banc, clearing the way for a petition for certiorari to the U.S. Supreme Court.

Indeed, with this ruling, it seems ever more likely the Supreme Court will weigh in on this question of the scope of Clean Water Act jurisdiction.  In Upstate, the Fourth Circuit panel joined the Ninth Circuit, which recently ruled that the Act did extend to a release of pollutants through groundwater to a water of the United States, Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) (click here for my analysis of that decision), but those rulings conflict with two earlier rulings by the Fifth and Seventh Circuits.  See Rice v. Harken Exploration Co., 250 F.3d 264, 271 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).  Continue reading “Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach”