E. Supp. 2015

What About Whitman?: The Supreme Court’s Decision in EPA v. Homer to Authorize Cost Consideration in Environmental Regulation Contradicts Its Own Precedent

Abstract: In 2011, in response to the ongoing problem of interstate air pollution, EPA promulgated the Transport Rule to restrict emissions in upwind states in order to achieve attainment of certain national ambient air quality standards in downwind states. State and local governments and industry and labor groups, unhappy with EPA’s process of determining which […]

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Budgetary Scapegoat: The U.S. Fish and Wildlife Service’s Inefficiency on Trial in Conservation Force v. Jewell

Abstract: By the early 1980s, the population of the straight-horned markhor—a large, shaggy goat with impressive spiraling horns native to the mountains of Pakistan—had dipped so low that the U.S. Fish & Wildlife Service (“FWS”) classified it as endangered. But when a group of conservationists and hunters petitioned the FWS to have the animal reclassified […]

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A “Green” Lining: Closing the Door on Environmental Litigants in Bellon Could Lead to More Successful Environmental Challenges in the Futur

Abstract: In Washington Environmental Council v. Bellon, the U.S. Court of Appeals for the Ninth Circuit addressed the issue of Article III standing with respect to environmental organizations filing suit under the Clean Air Act. The organizations alleged that Washington state agencies were required to regulate the greenhouse gas emissions of five oil refineries, and […]

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Positive Contribution: Why the Second Circuit’s Understanding of CERCLA § 113 Should Make Way for the Third Circuit’s Pro-Settlement Holding in Trinity Industries

Abstract: The U.S. Court of Appeals for the Second Circuit has interpreted section 113(f)(3)(B) of the Comprehensive Environmental Response, Cleanup, and Liability Act, or CERCLA, to only allow a party to seek contribution for claims resolved under CERCLA itself, rather than claims resolved under a state statute. In Trinity Industries, Inc. v. Chicago Bridge & […]

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Dormant Commerce Clause Review: Why the Ninth Circuit Decision in Corey Strayed from Precedent and What the Supreme Court Could Have Done About It

Abstract: In 2007, the California state legislature enacted the Low-Carbon Fuel Standard, or LCFS, limiting carbon emissions from transport fuels throughout the fuels’ entire “lifecycle,” by assigning “carbon intensity” scores to each fuel product. These scores are calculated using a variety of measurements, including the amount of carbon emitted while producing the fuels and in […]

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Why the Third Circuit Pro-Cooperative Federalism Preemption Holding in Bell Should Ultimately Be Adopted by the Supreme Court

Abstract: In Bell v. Cheswick Generating Station, the U.S. Court of Appeals for the Third Circuit reversed a decision by the U.S. District Court for the Western District of Pennsylvania, holding that state common law tort actions were not preempted by the federal Clean Air Act (“CAA”). The Third Circuit found that the savings clause […]

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Substantial Burden and The Reasonable Necessity Doctrine in Severance Deed Ownership: Whiteman v. Chesapeake Appalachia

Abstract: Horizontal severance deeds separate property rights above and below the surface. Sub-surface rights have typically belonged to mineral estate owners, whereas surface rights above have typically belonged to farmers. In West Virginia, courts have traditionally applied a common law trespass doctrine known as reasonable necessity to account for times when these bifurcated rights clash. […]

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Essentially Reasonable?: Why the Ninth Circuit’s Decision in Native Village of Point Hope Strays from the Purpose of NEPA

Abstract: In Native Village of Point Hope v. Jewell, the U.S. Court of Appeals for the Ninth Circuit found that the Bureau of Ocean Energy Management did not have to include information on animal populations in its environmental impact statement (“EIS”) at the lease-sale stage of the Outer Continental Shelf Lands Act oil and gas […]

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