Results tagged “U.S. Supreme Court” from GTH Energy & Natural Resources Law Blog

Over Heated Dissent, Ninth Circuit Rejects Rehearing in Low Carbon Fuel Standards Challenge, Setting Up Possible Supreme Court Commerce Clause Showdown

January 23, 2014

The U.S. Court of Appeals for the Ninth Circuit today rejected petitions for rehearing of its decision in Rocky Mountain Farmers Union v. Corey, the opinion issued last September which rejected constitutional challenges to California's low-carbon fuel standard. Seven judges dissented from the decision and took the unusual step of publishing their dissent which, in strongly-worded language, accused the majority of disregarding "longstanding dormant Commerce Clause doctrine" and placing the circuit "squarely at odds with Supreme Court precedent." This prompted Judge Ronald Gould to take the equally unusual step of issuing a written opinion defending the majority's decision to deny the petitions for rehearing.

As we have previously discussed, last fall, the Ninth Circuit, in a 2-1 split decision, upheld California's low-carbon fuel standard against challenges brought by out-of-state ethanol manufacturers, farmers, and allied interests. The challengers argued that, by using a geographically-based system for assessing the carbon footprint of different sources of ethanol and assigning higher default scores to Mid-Western producers than to California producers, California's system discriminated on its face against these out-of-state producers, and therefore violated the Commerce Clause of the U.S. Constitution. Under a doctrine known as the "dormant Commerce Clause," the courts have long held that states are prohibited from imposing constraints on interstate commerce that discriminate against out-of-state economic interests and artificially favor in-state interests. The panel's majority concluded that the low-carbon fuel standard is not facially discriminatory because California's system for assessing the carbon footprint of different ethanol sources is based on objective scientific evidence rather than on impermissible discrimination against out-of-state producers. Nonetheless, the Court remanded the case to the trial court to review evidence that might prove whether the low-carbon fuel standard discriminates against out-of-state producers in practice.

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Ninth Circuit Rejects Petition Seeking Regulation of Greenhouse Gases in Washington

October 25, 2013

Two October decisions of the federal courts are likely to have significant implications for regulation of greenhouse gases ("GHG") under the Clean Air Act. Of greatest note for the State of Washington, the Ninth Circuit last week overturned a lower court's order that would have required the Washington Department of Ecology ("Ecology") to set standards limiting GHG emissions from Washington's five oil refineries. The Court of Appeals concluded that the environmental plaintiffs lacked standing to bring their complaint. (Washington Environmental Council v. Bellon, No. 12-35323 (issued Oct. 17, 2013)).

In that case, two environmental groups filed a lawsuit in U.S. District Court under the Clean Air Act's citizen suit provisions arguing that Ecology, which administers the Clean Air Act in Washington under an EPA-approved State Implementation Plan, is obligated to set GHG emissions limits on the five refineries under the Act's "Reasonably Available Control Technology" requirements. The District Court agreed, ordering Ecology to develop GHG emissions limits for the five oil refineries by 2014.

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May: A Tough Month for Climate Plaintiffs, But Odd Fifth Circuit Decision Leaves the Door Ajar

June 13, 2013

In May, the federal courts rejected two more major cases in which plaintiffs sought damages from large emitters of greenhouse gases based on claims of climate-caused property damage. As a result of the U.S. Supreme Court's action, one of the major theories espoused by plaintiffs -- federal common law nuisance -- now appears to be dead. The fate of other major theories, however, remains uncertain because a federal appeals court could not escape a procedural tangle and therefore failed to definitively address those theories.

In the first case, involving the Native Village of Kivalina, Alaska, the Supreme Court denied a petition for certiorari filed by the plaintiffs, whose claim was earlier rejected by the U.S. Court of Appeals for the Ninth Circuit. As reported here previously, the Kivalina plaintiffs claimed that release of greenhouse gases has caused a significant decline of Arctic sea ice. Without the protection of sea ice, wave and storm damage from the Arctic Sea eroded the land underlying the Village. Under the plaintiffs' theory, greenhouse gas emitters are responsible for this property damage because greenhouse gases have caused the sea ice decline. The Ninth Circuit rejected Kivalina's claims, based on the federal common law of nuisance, concluding that federal common law has been displaced by the federal regulatory scheme under the Clean Air Act, which, as interpreted by the Supreme Court's 2007 opinion in Massachusetts v. EPA, reaches greenhouse gases as well as more traditional "criteria" pollutants. The Supreme Court's denial of certiorari appears to be the last gasp for climate lawsuits based on the federal common law. (Native Village of Kivalina v. Exxon Mobil Corp. et al. (Sup. Ct. Docket No. 12-1072).

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U.S. Supreme Court Narrows Antitrust Exemptions for Local Government Entities

February 22, 2013

In a decision of great interest to Washington's Public Hospital Districts, Public Utility Districts, Port Districts, and many other state and local government entities, the Supreme Court this week issued an opinion clarifying and narrowing antitrust immunity for state and local governments. As a result of the decision, public agencies will need to exercise great care when taking actions that could restrict competition.

Under the "state-action immunity doctrine," the courts have long recognized that local government entities are immune from federal antitrust liability if they act under state law intended to restrict competition. But, for immunity to apply, a local government entity must act under a "clearly articulated and affirmatively expressed state policy to displace competition." This week's Supreme Court decision, FTC v. Phoebe Putney Health System, Inc., clarifies how this "clearly articulated and affirmatively expressed" test should be applied. The Court concludes that, while state legislatures need not explicitly state that they intend to restrict competition, limitation of competition must be the natural and logical consequence of the policy adopted by the state.

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U.S. Supreme Court Rejects Ninth Circuit Determination That Moving Water Through A Conduit Is a "Discharge": Dam Operators Remain Safe From Clean Water Act Liability

January 9, 2013

In a short and unanimous ruling issued yesterday, the U.S. Supreme Court in Los Angeles County Flood Control District v. Natural Resources Defense Council (No. 11-460) rejected the Ninth Circuit's holding that a "discharge" of pollutants occurs when water is moved through a concrete flood control channel into a navigable river. As noted in our November 2 post, this is one of two cases of particular concern to dam operators on the Supreme Court's current docket. The Supreme Court's opinion reaffirms the long-standing doctrine that dams and other water control structures do not "discharge" pollution, the primary test of liability under the Clean Water Act ("CWA"), where those structures merely pass polluted water through the dam works without adding new pollutants. Operators of such facilities can now breath a sigh of relief because the Ninth Circuit's inroad into this doctrine has been eliminated.

The case arises from a citizen suit filed by environmental groups claiming that the L.A. County Flood Control District violated its Clean Water Act ("CWA") permit by allowing excessive levels of pollution in its municipal storm water control system. The District Court rejected the suit, concluding that the Flood Control District had not "discharged" a "pollutant" into the water so as to violate the CWA, but had only transported already-polluted water in the flood control channels, relying on the Supreme Court's holding in South Florida Water Management District v. Miccosukee Tribe. In that case, the Supreme Court held unanimously that no addition of a pollutant occurs that could trigger liability under the CWA when a conveyance merely transfers water from one part of a water body to another without adding any pollutants.

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Floodgates Open to Takings Claims? Supreme Court Finds That Even Temporary Flooding From Government-Owned Dams May Constitute a "Taking"

December 10, 2012

As reported in our posting of November 2, the U.S. Supreme Court this term is considering two cases of particular significance for dam operators. The first, Arkansas Fish & Game Commission v. United States, was decided last week. The court rejected the proposition that no Fifth Amendment taking can occur from temporary flooding caused by a government-owned dam. This result will give little comfort to dam operators since takings claims will now be decided on a fact-intensive balancing test rather than on the basis of a per se rule that takings can arise only from permanent or predictable periodic flooding.

The case arose from seasonal flooding at the Donaldson Black River Wildlife Management Area ("WMA") in northwest Arkansas caused the U.S. Army Corps of Engineers' Clearwater Dam, located 115 miles upstream in Missouri. In the 1990s, the Corps began to deviate from its accepted operating plan for the Clearwater reservoir in order to reduce damage to crops upstream from the dam. Arkansas sued the Corps, asserting that deviations from operating rules increased flooding in the WMA, damaging hardwoods and reducing the value of the habitat in the WMA. The claim succeeded in the lower court, but the U.S. Court of Appeals for the Federal Circuit, in a split en banc decision, reversed, holding that the flooding was only temporary and therefore could not support a takings claim. This holding was primarily based on Supreme Court takings precedents from 1924 and 1917 involving dams.

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Dams in the Supreme Court: Two Cases To Watch This Term

November 2, 2012

Two cases of great importance to operators of dams, storm sewers, and other water works will be decided in the U.S. Supreme Court's current term. The first, Arkansas Fish & Game Commission v. United States (No. 11-597), involves a takings claim for flooding caused by a U.S. Army Corps of Engineers ("Corps") dam. The second, Los Angeles County Flood Control District v. Natural Resources Defense Council (No. 11-460), addresses whether a the operator of a municipal storm sewer system violated its permit under the Clean Water Act ("CWA") where its flood control structures channeled an already-polluted river, passing the polluted water through a man-made structure, but without adding new pollution.

In Arkansas Fish & Game, the state successfully asserted a claim that periodic flooding from a Corps dam, which caused significant damage at a wildlife refuge downstream from the dam, constituted a compensable "taking" under the Fifth Amendment of the U.S. Constitution. The property at issue, the Donaldson Black River Wildlife Management Area ("WMA") in northwest Arkansas, contains rare and important bottomland hardwood habitat. It is located approximately 115 miles downstream from the Corps' Clearwater Dam in Missouri, which was constructed in the 1940s as part of efforts to control flooding in the Mississippi Basin. In the 1990s, the Corps began to deviate from its accepted operating plan for the Clearwater reservoir in order to reduce damage to crops upstream from the dam. Arkansas claimed that the deviations from operating rules increased flooding in the WMA, damaging hardwoods and reducing the value of the habitat in the WMA.

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