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Environmental Law

Do the EPA’s CO2 Rules Go Too Far? - Event Video

2014 National Lawyers Convention
Paul Bailey, Elbert Lin, Robert V. Percival, Robert Sussman, Frank H. Easterbrook November 17, 2014

On June 2, 2014, the Obama Administration took action that would require a 30 percent cut in carbon emissions at fossil fuel-burning power plants by 2030.  Some industry representatives and state officials contend that the goals are unattainable, and the required shut-down of even a fraction of the coal-burning power plants required will put several power grids at risk, particularly during the upcoming winter season.  Regulators site cost-benefit claims of seven to one – that is, for every dollar expended on compliance, seven dollars will be saved in other areas, largely health care.  Are the rules likely to be finalized?  If so, how must such reductions be accomplished?  How much latitude will states and private actors have in meeting the new requirements?

The Federalist Society's Environmental Law & Property Rights Practice Groups presented this panel on "Do the EPA’s CO2 Rules Go Too Far?" on Saturday, November 15, during the 2014 National Lawyers Convention.

Featuring:

  • Mr. Paul Bailey, Senior Vice President for Federal Affairs and Policy, American Coalition for Clean Coal Electricity
  • Mr. Elbert Lin, Solicitor General, State of West Virginia
  • Prof. Robert Percival, Robert F. Stanton Professor of Law and Director, Environmental Law Program, University of Maryland Francis King Carey School of Law
  • Mr. Robert M. Sussman, Principal, Sussman & Associates and former Senior Policy Counsel to EPA Administrator and EPA Deputy Administrator
  • Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit

Mayflower Hotel
Washington, DC

Hot Topics in Class Action Reform: The BP Deepwater Horizon Case - Event Audio/Video

Sponsored by the Federalist Society's Practice Groups
Neal K. Katyal, Theodore B. Olson, Stuart S. Taylor September 09, 2014

Putting aside criminal cases, the stakes for all sides are perhaps never higher than in a class action case – mere certification of a class can increase the pressure to settle exponentially. But, of course, the class must be properly composed in order to be certified. In the recently-decided Wal-Mart v. Dukes case, the U.S. Supreme Court revisited some of the basic requirements for certification of a class of plaintiffs, including commonality. Other requirements of Rule 23 certification may surface in ongoing litigation stemming from the 2010 BP Deepwater Horizon oil spill, where defense attorneys are arguing, among other things, that the settlement agreement is being administered and interpreted overly broadly to include numerous class members who have not suffered any injury caused by BP. Our experts will discuss recent developments in class action litigation, including a pending petition for cert in the BP case. The Federalist Society presented this panel on September 4, 2014.

Featuring:

  • Prof. Neal K. Katyal, Partner, Hogan Lovells, and Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center
  • Hon. Theodore B. Olson, Partner, Gibson Dunn & Crutcher LLP
  • Moderator: Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution

National Press Club
Washington, DC

Utility Air Regulatory Group v. Environmental Protection Agency - Post-Decision SCOTUScast

SCOTUScast 8-22-14 featuring Robert Gasaway
Robert R. Gasaway August 22, 2014

On June 23, 2014, the Supreme Court issued its opinion in Utility Air Regulatory Group v. Environmental Protection Agency. The question in this case was whether the EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases (“GHGs”).

Justice Scalia delivered the opinion of the Court with respect to parts I and II, which held that the EPA could not require a source to obtain a Prevention of Significant Deterioration (PSD) or Title V permit solely on the basis that the source emits GHGs.  The Court also concluded, however, that the EPA could reasonably interpret the Clean Air Act to allow for the regulation of GHG emissions from sources already subject to regulation under the PSD and Title V program.

Chief Justice Roberts and Justice Kennedy joined the opinion of the Court in full. Justices Thomas and Alito joined the opinion as to parts I, II-A, and II-B-1. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined as to Part II-B-2. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Alito filed an opinion concurring in part and dissenting in part, which Justice Thomas joined. The judgement of the United States Court of Appeals for the D.C. Circuit was affirmed in part and reversed in part.

To discuss these cases, we have Robert R. Gasaway, who is a partner at the law firm Kirkland & Ellis LLP.

Cooperation or Coercion on Climate: Is the EPA Trying to Deputize the States? - Podcast

Federalism & Separation of Powers Practice Group Podcast
Michael S. Greve, Mario Loyola, Bryan W. Shaw August 04, 2014

It has been argued that EPA's recently announced carbon emissions rule is just the latest attempt to draw states into the implementation of its regulations. The Supreme Court has long been permissive of such "cooperative federalism" programs in both the regulatory and spending contexts, insisting in New York v. United States (1992) and Printz v. United States (1997) that such programs constitute mere "encouragement" not rising to the level of coercion or commandeering. But Texas's fight to resist being drawn into implementing EPA's greenhouse gas regulations suggests that federal "encouragement" can be deeply coercive, employing penalties against the state's economy that courts have no doctrine to account for.

  • Prof. Michael S. Greve, George Mason University School of Law
  • Mario Loyola, Senior Fellow, Texas Public Policy Foundation
  • Dr. Bryan W. Shaw, Chairman, Texas Commission on Environmental Quality

Supreme Court Rules on Greenhouse Gases - Podcast

Environmental Law & Property Rights Practice Group Podcast
Robert R. Gasaway June 26, 2014

Supreme CourtOn Monday, June 23, 2014, the Supreme Court decided Utility Air Regulatory Group v. Environmental Protection Agency. At issue was the EPA’s conclusion that its regulation of greenhouse gases from motor vehicles triggered mandatory regulation of GHGs from large stationary sources, as well as EPA’s subsequent decision to rewrite the statutory emission thresholds in order to facilitate GHG regulation. The Court held that the EPA is not obligated to regulate GHGs under the Prevention of Significant Deterioration (PSD) and Title V programs, and that the EPA is not permitted to rewrite the applicable statutory emission thresholds – an important reaffirmation that agencies are not allowed to rewrite the statutes that they administer. However, the Court also concluded that it was reasonable for the EPA to interpret the Clean Air Act to allow for the regulation of GHG emissions from sources already subject to regulation under the PSD and Title V program. Our expert discussed the opinion and its impact and future regulation of greenhouse gases.

  • Robert R. Gasaway, Partner, Kirkland & Ellis LLP