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June 19, 2020 by Katie Tracy

Supreme Court Affirms Title VII Protections for LGBTQ+ Community

Until this week, laws in a majority of U.S. states permitted some form of employment discrimination based on sexual orientation or gender identity. That was no oversight on the part of state legislatures or the U.S. Congress. It was instead the product of virulent right-wing opposition to the recognition of the fundamental rights of members of the LGBTQ+ community. Not only did they oppose laws to protect against discrimination, they raised untold millions of dollars over the years boasting about it and used anti-gay ballot initiatives as a tool to inflame passions and draw out arch-conservative voters.

On Monday, the law changed – dramatically, sweepingly, historically – when the U.S. Supreme Court made clear that in this respect the 1964 Civil Rights Act's anti-employment discrimination provisions mean exactly what they say. The Court's ruling in Bostock v. Clayton County, Georgia makes clear that it is illegal to base employment decisions – hiring and firing, the allocation of work, the grouping of employees, compensation practices, harassment – on sexual orientation or identity. The prior patchwork of state laws – most of which permitted some type of employment discrimination based on orientation or identity – is no more. It is now the law of the …

May 1, 2020 by Karrigan Bork, Thomas Harter, Steph Tai
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This post was originally published on California WaterBlog. Reprinted with permission.

In 1972, the U.S. Clean Water Act (CWA) created a permit system for point source discharges to navigable waters of the United States – rivers, lakes, and coastal waters – with the goal of restoring and protecting their water quality. Typically, these permits are issued by the U.S. EPA or through state agencies to dischargers of wastewater, e.g., from urban and industrial wastewater treatment plants and to other dischargers of potentially contaminated water that reach streams by a pipe or similar conveyance. The goal was to provide some degree of regulatory oversight over such discharges. In California, the State Water Resources Control Board implements the federal Clean Water Act using its authority under the Porter-Cologne Water Quality Control Act (Water Code, §13000 et seq.). Under the CWA, neither EPA nor the states are required to …

April 24, 2020 by Lisa Heinzerling
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This post was originally published on April 23, 2020, on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

Today, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Because the U.S. Court of Appeals for the 9th Circuit applied a different legal test in determining that a permit was required for a sewage treatment facility operated by the County of Maui, the Supreme Court vacated the 9th Circuit's judgment and remanded the case for application of the standard announced today.

Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority – which drew the votes of Chief Justice John Roberts and …

Feb. 26, 2020 by Noah Sachs
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This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

Environmental groups faced a skeptical bench during Monday's argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest. The permit also authorized the developers to tunnel 600 feet beneath the Appalachian Trail within the forest. Vacating the permit, the 4th Circuit held that the entire 2,100-mile Appalachian Trail is part of the …

Jan. 28, 2020 by Karen Sokol
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On January 17, a panel of the Ninth Circuit Court of Appeals issued a much-awaited decision dismissing Juliana v. United States, a climate case that gained more traction in the courts than anyone had expected, given, as U.S. District Court Judge Ann Aiken stated in her opinion denying the motions to dismiss in the case, it was "no ordinary lawsuit."   

Aiken's statement is true in many respects, including the nature of the right asserted by the plaintiffs – 21 young people ranging from eight to nineteen years of age, and a climate scientist acting as guardian for future generations. They asserted that the U.S. Constitution protects the right to a "climate system capable of sustaining human life," something that had not been recognized by a federal court until Aiken issued her opinion in the case.

Furthermore, the violation the youth plaintiffs …

Jan. 27, 2020 by Joel Mintz
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From time to time, a judicial decision from a federal court has the potential to have a profound impact on American society and government policy. Such a case is Juliana v. United States, in which a group of 21 young people, together with an environmental organization and "a representative of future generations," brought suit against numerous federal agencies and officials seeking a judicially mandated plan to phase out fossil fuel emissions and a drawdown of excess atmospheric carbon.

Though it could result in needed, far-reaching changes in our nation's climate change policies, this lawsuit recently ran into a legal obstacle before a three-judge panel of the United States Court of Appeals for the Ninth Circuit. By a two-to-one vote, the judges clearly acknowledged the grave and growing peril posed by an ongoing buildup of greenhouse gases in the atmosphere. At the same time, however, the panel …

Nov. 10, 2019 by Lisa Heinzerling
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This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Heinzerling's argument preview for this case.

The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is whether a permit is required for pollutants that originate from a point source but travel through groundwater before reaching a navigable water.

The textual crux of the case is the word “from”: Does “from” mean that a pollutant must be directly delivered to a navigable water by a point source or that a pollutant must merely originate at a point source?

If “from” means the former …

Nov. 4, 2019 by Lisa Heinzerling
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This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation's waters of any pollutant that comes "from any point source." Congress' high hopes for the cleansing power of the act's permitting system are reflected in the name Congress chose for it – the "national pollutant discharge elimination system" – and the attendant statutory goal that "the discharge of pollutants into the navigable waters be eliminated by 1985." Yet in requiring permits only for point sources of water pollution, Congress excluded nonpoint sources from the permit system's reach. County of Maui, Hawaii v. Hawaii Wildlife Fund, which will be argued Wednesday, asks whether the act "requires a permit when pollutants originate from a point source but …

Oct. 21, 2019 by Daniel Farber
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Originally published on Legal Planet.

There are going to be some significant environmental cases over the next year. In addition, some important new cases will be filed now or in the near future, which may produce some interesting rulings. It will probably take more than a year, however, for some of the big new cases down the turnpike to result in their first level of judicial opinions, let alone reach completion.

The Supreme Court

The Court agreed last spring to hear two environmental cases this year. The first, County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, will be argued on November 6. The issue is whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

The second case was Atlantic Richfield Co. v. Christian, No. 17-1498. It's …

July 18, 2019 by Daniel Farber
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Originally published on Legal Planet

There's already been a lot written in the aftermath of Justice Stevens's death, including Ann Carlson's excellent Legal Planet post earlier this week. I'd like to add something about an aspect of his jurisprudence that had great relevance to environmental law: his belief in the rule of law, and specifically, in the duty of both the judiciary and the executive branch to respect and implement congressional mandates.

This stance was evident in Justice Stevens's decision in Massachusetts v. EPA, probably the most important environmental case that Supreme Court has ever decided. The Bush administration refused to regulate greenhouse gases under the Clean Air Act. But the statute was very clear. It defined air pollutants as any substance emitted into the air, and it required regulation of such pollutants whenever they endanger human health or welfare. The Bush administration also argued that international …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 19, 2020

Supreme Court Affirms Title VII Protections for LGBTQ+ Community

May 1, 2020

Supreme Court Ruling Finds Old, New Middle Ground on Clean Water Act's Application to Groundwater

April 24, 2020

Opinion analysis: The justices' purpose-full reading of the Clean Water Act

Feb. 26, 2020

Argument Analysis: The Trail, the Pipeline, and a Journey to the Center of the Earth

Jan. 28, 2020

Despite Recent Setbacks, Juliana and Other Climate Suits Deserve their Day in Court

Jan. 27, 2020

Climate Chaos and the Courts: Disappointment (Despite Some Encouragement) in Juliana v. United States

Nov. 10, 2019

Argument Analysis: Context Trumps Text as Justices Debate Reach of Clean Water Act