Green sturgeon critical habitat challenge: oral argument this week

On Thursday, March 5, 2015, at 9 a.m., I’ll be arguing at the 9th Circuit in support of our challenge under the Endangered Species Act to the critical habitat designation for a marine species known as the green sturgeon.  The critical … Continue reading

The forgotten victims of species protection

Well-doers often forget the costs that the Endangered Species Act imposes on others. The listing of an animal as threatened or endangered saddles people within its range with some heavy burdens. Property owners may lose control over portions of their own property, which they must leave untouched … Continue reading

Testimony in Montana: the Competitor’s Veto is unconstitutional

Today I testified to the Montana Legislature’s House Transportation Committee about the unconstitutionality of their Competitor’s Veto law—the same law we challenged in court yesterday.  The Committee is considering amending that law and eliminating the Competitor’s Veto for the taxi industry. … Continue reading

School choice is a boon for taxpayers

People support school choice for many reasons. Most support it because it’s the last best hope for their children to get a decent education. Some hope that it is a means to mitigate the impacts of racial and income segregation. … Continue reading

Montana to consider amending its Competitor’s Veto Law

I’ll be testifying in front of the Montana House of Representatives Transportation Committee this Friday at 3 pm to talk about Competitor’s Veto laws and the right to earn a living.  You can stream that hearing live on Friday here. … Continue reading

Like a good neighbor…

In 2007, Minnesota passed a law to regulate emissions from power plants. But, because the increased costs of complying with this law would lead to more of the electricity consumed in the state to be generated elsewhere, Minnesota asserted the … Continue reading

Should government tell you whom you can invite into your home?

Businesses would often prefer to shut out new innovators through regulation than compete with them. For example, taxi companies across the globe clamor for government to regulate the ride-sharing services of Uber and Lyft. These anti-competitive urges hurt economic growth and constrict … Continue reading

A farce, a tragedy, or both

James Madison once wrote, “a popular government, without popular information, or the means of acquiring it, is but a prologue to a Farce, or a Tragedy, or, perhaps, both.” Despite being bad at agreeing on about anything nowadays, most everyone likes the idea … Continue reading

Oral argument in PLF’s challenge to EPA’s mobile source greenhouse gas rules held on January 9, 2015

On Friday, January 9, 2015, the D.C. Circuit heard our challenges to the greenhouse gas emissions standards for new trucks and cars.  The challenges were based on EPA’s failure to submit to the Science Advisory Board for peer review the Truck Rule and the separate Car Rule limiting greenhouse gas emissions.  We argued that submittal to the Board is a nondiscretionary statutory mandate applicable to all EPA rules, and that EPA’s failure to comply with the mandate requires the Truck Rule and Car Rule to be remanded and vacated, so that the Agency can reopen the administrative record to seek review from the Board.

The three-judge panel of Tatel, Ginsburg, and Edwards did not concentrate on the substantive issue of whether EPA failed to comply with the statutory requirement.  Rather, they spent the bulk of the hearing asking questions regarding whether the Petitioners had standing to bring the actions.  Standing is a Constitutional requirement, which forbids federal courts from hearing cases unless there is a bona fide controversy between parties to a lawsuit.  The purpose of the standing requirement is to ensure that the courts do not engage in resolving philosophical or abstract questions.

For the purposes of our cases, the standing requirement has three components: (1) the petitioners must be injured-in-fact by the Truck Rule or Car Rule, as the case may be; (2) the injuries must be caused by the rules; and (3) the Court is able to grant relief that will remove or reduce the injuries.  It is difficult to predict how any particular court will decide any pending issue, but the D.C. Circuit panel seemed to side with us on the injury-in-fact and causation issues, concentrating most of their questions on the redressability issue.  It comes down to this: whether vacating and remanding the EPA Truck Rule and Car Rule will help to ameliorate the injuries in light of similar California rules and the federal fuel economy standards promulgated by the National Highway Traffic Safety Administration.  Citing Supreme Court precedent, we argued that the Petitioners’ injuries are redressable because a favorable decision would remove at least one regulatory cause of the injuries.  There is no requirement that all causes of the injury be removed.

If the panel rules in our favor on the standing question, it will be required to address the substantive issue of whether EPA’s violation of the submittal requirement merits remand and vacatur of the two rules.  We expect a decision before the end of the year.