The Supreme Court’s NOT Top 10: October Term 2015 Petitions the Justices Should Have Granted

supreme courtThis Monday the U.S. Supreme Court will conduct its Long Conference, so named for the larger than usual number of certiorari petitions it considers there.  With the fate of so many cert petitions hanging in the balance—and the overwhelming majority of them about to be denied—now is an opportune time to look back at the top 10 cases that were wrongly denied cert in the Court’s last term.

As with the previous installments of my “Not Top 10” list (see here and here), no more than half the cases discussed below will be ones in which Washington Legal Foundation filed a brief in support of certiorari.  Also, the cases will once again be limited to those that affect economic liberty, including the need for legal certainty around key legal policies and regulatory regimes.  From WLF’s free-enterprise perspective, those cases that implicate competition in the marketplace, limited and accountable government, individual and business civil liberties, or rule of law concerns matter the most. Continue reading

Federal Court Deems “Identifiable Trifle” to Be Sufficient Harm for Environmental Citizen-Suit Standing

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

In late August, the United States District Court for the Central District of Illinois held that the owner and operator of a coal-fired power plant was liable for violations of the Clean Air Act (CAA) related to particulate matter emissions. See National Resources Defense Council et al. v. Illinois Power Resources, et al.  While the decision ultimately reached and decided the merits of the CAA violations largely in Plaintiffs’ favor, the case is also notable for its discussion of whether Plaintiffs—the Natural Resource Defense Council, Respiratory Health Association, and Sierra Club—have standing to sue under the CAA’s citizen-suit provision, 42 U.S.C. § 7604.  The court held that they do, and specifically that all that was required to establish injury was an “identifiable trifle.”  Defendants in environmental citizen suits will have an increasingly difficult time challenging plaintiffs’ standing if more judges embrace this court’s exceedingly low standard for what constitutes a “case or controversy.” Continue reading

Update: Activists Hostile to Domestic Energy Development Fail in Colorado Ballot Initiative Effort

natural gasIn an August 26, 2016 Washington Legal Foundation Legal Backgrounder, Fighting the Frack Attack: The State of State Preemption Efforts, Kelley, Drye & Warren LLP attorneys Wayne D’Angelo and Travis Cushman document how the highest courts in four states have addressed local government limits on highly successful oil and gas extraction methods, such as hydraulic fracturing and horizontal drilling. The most recent state court to consider the issue, the Colorado Supreme Court, held that two local governments’ limits on extraction techniques conflicted with the state’s oil and gas regulatory regime.

The paper noted that at the time of its release, it was unclear whether the Colorado Supreme Court’s rulings would remain in force because “Colorado is at the epicenter of a heated ballot initiative to change the state’s oil and gas laws.”

The Denver Post reported August 29 that the sponsors of two ballot initiatives related to oil and gas extraction failed to collect the number of requisite signatures for a November 8 vote. One measure would have prohibited new oil and gas facilities within 2,500 feet of homes; the other would have expanded local governments’ authority to restrict hydraulic fracturing. The Colorado Secretary of State’s random sampling of signatures for the two initiatives not only showed that their sponsors came up short of the 98,492 needed, but also that some of the signatures may have been forged.

Activists hostile to domestic energy development also failed in 2014 to place similar measures before Colorado voters.

Crusade or Charade?: What’s Really Motivating Efforts to Mandate GMO-Labeling?


Because “public-interest” groups cloak themselves with the feel-good mantle of protecting consumers, the environment, animals, etc., the motives of such groups rarely get questioned. But several recent developments show that all too often, activists put their own self-interest before the public’s interest.

Consider, for example, environmental groups’ opposition to a Washington state ballot measure going before voters this fall. Initiative 732 pursues a major environmentalist goal—carbon-emissions reduction—by imposing an excise tax. Revenues from the carbon tax would in turn fund sales, manufacturing, and low-income-household tax cuts. In other words, it’s revenue neutral, and that doesn’t sit well with green activists who see climate change as an effective proxy for a broader ideological goal: expanding government. Continue reading

No CERCLA “Arranger Liability” for Falling Air Emissions, Ninth Circuit Holds

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

The United States Court of Appeals for the Ninth Circuit recently issued a long-awaited decision interpreting the meaning of “disposal” under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). The court determined that parties who release air emissions containing hazardous substances that may later come to rest on downwind land and water are not liable as arrangers under CERCLA.  It is a sensible reading of the statute—as a contrary reading could open the door to substantial additional litigation. Continue reading

Fifth Circuit’s Frog-Habitat Ruling Endangers Common Sense and Growth in Louisiana

st_tammany_navBy Trey Wassdorf, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.

At the behest of special-interest activists and government regulators, federal courts continue to broaden the scope of the Endangered Species Act (ESA), often in ways that do little to actually preserve plants and animals.  The latest expansive ruling comes from the US Court of Appeals for the Fifth Circuit.  In Markle Interests, L.L.C. v. United States Fish and Wildlife Service, the court upheld the designation of 1,544 acres of private land in Louisiana as “critical habitat” for the dusky gopher frog, Rana sevosa, even though it does not reside on the land and the land does not currently feature the characteristics needed to support the frog. Continue reading

Fish and Wildlife Service’s Delisting of Lesser Prairie Chicken a Win, and a Test, for Voluntary Conservation

Lesser Prairie Chicken

Lesser Prairie Chicken

On July 20, 2016, ten months after a U.S. District Court for the Western District of Texas judge ruled that federal regulators erred in finding the lesser prairie chicken “threatened” under the Endangered Species Act (ESA), the US Fish & Wildlife Service (FWS) finalized its delisting decision. The decision not only validates the work of a public-private bird-conservation partnership, it will also test the viability of such state-based efforts. Continue reading