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
Property owners in New York and New Jersey learned again this week that their state courts often reject property rights in favor of creative ways to take private property in a manner that violates the Fifth Amendment. In New York, the court upended a centuries-old settled … Continue reading
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
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.
Today in 1941, President Franklin D. Roosevelt delivered a landmark speech known as the “Four Freedoms.” The speech focuses on the looming threat of world war, but he concludes by listing four freedoms that he deemed essential. FDR’s first two freedoms, freedom … Continue reading
I’ll be arguing in the D.C. Circuit this Friday, January 9, 2015, that EPA’s greenhouse gas standards for new cars and trucks should be reversed because EPA failed to comply with a nondiscretionary statutory requirement to submit the rules for … Continue reading
The Arizona Supreme Court said goodbye to outgoing governor Jan Brewer by upholding the right of legislators to challenge her illegal Medicaid expansion efforts. Last year, Brewer and her supporters engineered an expansion of the state’s Medicaid program pursuant to Obamacare—bizarrely, … Continue reading
I follow The Onion on Twitter. It is a news parody site, and it is regularly hilarious. Over the weekend it tweeted, “Ambitious High-Speed Rail Plan Will Fly Americans To Japan To Use Their Trains onion.com/1Am4dk1 #OurAnnualYear.” The linked article talks about an “ambitious” $80 billion … Continue reading
From the home office in Hohman, Indiana, a tongue-in-cheek look at the top ten ways A Christmas Story would be different if it took place today: 10. In response to Flick getting his tongue stuck to the frozen flagpole, Flick’s … Continue reading
When the ghost of Jacob Marley bemoaned his eternal torment, Scrooge spluttered, “But you were always a good man of business, Jacob.” “Business!” cried the ghost. “Mankind was my business; charity, mercy, forbearance, and benevolence, were, all, my business. The deals … Continue reading