Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal

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have either adopted or are pursuing their own “net neutrality” rules after the Federal Communications Commission repealed a 2015 rule.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”

WLF Webinar Speakers Critique Public-Nuisance Lawsuits

After long being a mere remnant of the old English common law, public nuisance has been experiencing an elongated renaissance. Courts have expanded the elastic doctrine into an all-purpose cause of action. As a result, lawsuits have alleged that everyday products such as paint, life-saving drugs, and pervasively regulated sources of carbon emissions are an unlawful nuisance. Richard Faulk of Davis Wright Tremaine LLP and Neil Merkl of Kelley Drye & Warren LLP traced this tort’s transformation, discussed its current applications, and explained why judges should curtail its growth.

The Powerpoint slides that accompanied their presentations are available here.

Update: Court Imposes Injunction on Proposition 65 Listing of Glyphosate

On November 27, 2017, a WLF Legal Pulse post by WLF Senior Litigation Counsel Cory Andrews discussed a lawsuit filed by makers and users of pesticides that include the chemical glyphosate against the California agency that administers Proposition 65. That law requires warnings on products that contain substances “known to the state of California” to cause cancer. On February 26, Eastern District of California Judge William B. Shubb imposed a preliminary injunction preventing the state from listing glyphosate as a carcinogen under Prop 65. The court held that the plaintiffs were likely to prevail on the First Amendment arguments in their suit. National Ass’n of Wheat Growers, et al. v. Zeise.

Under Prop 65, a substance must be listed if it is identified as a potential carcinogens by the International Agency for Research on Cancer (IARC), an international non-governmental entity. In 2015, IARC made that determination for glyphosate, triggering the automatic Prop 65 listing. IARC’s classification of glyphosate is contrary to the conclusions of many environmental regulators around the world, including the US EPA. Last November, a study published in the Journal of the National Cancer Institute reinforced those regulators’ conclusions that glyphosate was unlikely to pose a cancer hazard to humans.

To pass muster under the First Amendment, a commercial-speech mandate must require language that is “purely factual and uncontroversial.” The language must thus be factually accurate, and even if literally true, cannot be misleading. Judge Shubb found that the warning required for glyphosate is not factual or uncontroversial because it “conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glysophate causes cancer.”

Environmental Enforcement Implications from Recent DOJ and EPA Guidance

sboxermanFeatured 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”

Ninth Circuit Blows Limiting Principle on “Point Source” Out of Water with CWA Ruling

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP

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”

When Assessing Burdens for Farmers, Other Landowners, White House Shouldn’t Duck Overhaul of Wetlands Regulatory Juggernaut

Lawrence KoganGuest Commentary

By Lawrence A. Kogan*

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”

California Municipalities’ Climate-Change Litigation Against Energy Companies Takes a Surprising New Turn

Andrew-Varcoe-vert-1Guest Commentary

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”