July 31 : June 30 : May 14 : March 4 : January
13
July 31, 2003
- Ninth Circuit Rules on California Request for Waiver of Oxygen
Requirement under Federal Reformulated Gas Program
The Ninth
circuit recently ruled on Governor Davis's and the California
Air Resources Board's petition for review of an EPA order denying
their waiver request under the Clean Air Act. The Court concluded
that the Clean Air Act gave the EPA broad discretion regarding
waiver of the oxygen requirement under the Reformulated Gas Program,
and accepted the EPA conclusion that California had failed to
show that maintaining the oxygen requirement interferes with California's
ability to comply with requirements for ozone. However, the Court
also found that the EPA had abused its discretion by refusing
to evaluate the effect that an oxygen waiver would have on California's
efforts to comply with particulate matter air quality standards.
Judge O'Scannlain, dissenting in part, argued that Congress never
instructed the EPA to resolve uncertainties in emissions modeling
by balancing the harmful effects to one air quality standard with
potential benefits to another. Davis v. EPA, No. 01-71356
(July 17, 2003).
Click HERE
to read Davis
v. EPA. (PDF)
D.C. Circuit Denies Rehearing En Banc of Decision Rejecting Commerce Clause Challenge to Application of Endangered Species Act The panel in Rancho Viejo had upheld an order of the Fish and Wildlife Service to a developer to remove a fence from its property to protect the movement of arroyo toads. Arroyo toads are nonmigratory and do not have a commercial use. Judge Sentelle dissented from the denial of rehearing, arguing that the Court's holding conflicted with the Supreme Court's decisions in United States v. Lopez and United States v. Morrison. Sentelle also noted that ground preparation and erection of a fence is not commerce, let alone interstate commerce. Judge Roberts also dissented, arguing that the Commerce Clause challenges in Lopez and Morrison would have failed under the panel's reasoning, and emphasizing the circuit split with the Fifth Circuit's contrary holding in GDF Realty Inv., Ltd. v. Norton. Rancho Viejo v. Norton, No. 01-5375 (July 22, 2003).
Click HERE
to read Rancho
Viejo v. Norton.
May 14, 2003
- PROPERTY RIGHTS AFTER TAHOE TRANSCRIPTS
The Federalist Society's Environmental Law and Property Rights
Practice Group held a conference in Los Angeles on January 30th
on Property Rights After Tahoe. The transcripts are available
for the two addresses given at the conference.
Please click HERE
to access the remarks by Judge Diarmuid F. O'Scannlain, United
States Circuit Judge for the Ninth Circuit. (PDF) Click HERE
to access the remarks of Michael Berger, Berger and Norton. (PDF)
Please check back, as we will make transcripts of the other panels
available soon.
March 4, 2003
- CONFERENCE ON WATER RIGHTS AND FEDERALISM
The Federalist Society's Environmental Law and Property Rights
Practice Group will host a conference in Denver on March 21 on
Water Rights and Federalism issues. Please click HERE
for details and to register.
January 13,
2003
- Property Rights After Tahoe Conference
The Federalist Society's Environmental Law and Property Rights
Practice Group will host a conference in Los Angeles on January
30 to examine the future of property rights in the United States,
with particular focus on the impact of Tahoe Sierra Preservation
Council v. Tahoe Regional Planning Agency. Please click HERE
for details and to register.
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