In the News
April 5, 2021
The U.S. Court of Appeals for the D.C. Circuit today vacated two U.S. Environmental Protection Agency rules issued by the Trump Administration and challenged by our client Environmental Defense Fund.
First, the court vacated a rule that sought to limit application of Section 11 of the Clean Air Act—which governs stationary sources of pollution—to power plants, excluding other major emitters of greenhouse gases. EPA had issued the rule without the requisite notice-and-comment process, days before President Trump left office. Environmental Defense Fund, represented by our attorneys Susannah Weaver and Sean Donahue, petitioned for judicial review of the rule alongside a number of other environmental organizations, twenty-one states, and seven cities and counties.
Separately, the D.C. Circuit vacated a rule that had delayed implementation deadlines for regulations aimed at reducing air pollution from municipal solid waste landfills. The ruling paves the way for EPA to issue a federal plan to implement these protections. Environmental Defense Fund, represented by our attorneys Susannah Weaver and Matt Littleton, petitioned for judicial review of the rule alongside the States of California, Illinois, Maryland, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, and Vermont.
Update: On May 17, 2021, EPA issued its long-overdue federal plan, triggering deadlines for landfills to reduce emissions of greenhouse gases and smog-forming pollution. EPA's straightforward action concludes years of litigation over EPA's refusal to implement these safeguards during the Trump Administration.
March 31, 2021
Matt Littleton and David Goldberg filed a merits brief in the U.S. Supreme Court on behalf of respondent New Jersey Conservation Foundation. The brief defends the U.S. Court of Appeals for the Third Circuit's dismissal of the State of New Jersey as a defendant in eminent domain suits filed by PennEast Pipeline Company. PennEast sought to take the State's (and the Foundation's) land for a prospective natural gas pipeline, but our brief argues that the Eleventh Amendment forecloses private suits to acquire property in which the State has an interest; and, in any event, the Natural Gas Act does not authorize such suits. The Court heard oral argument in the case on April 28, 2021.
March 18, 2021
Matt Littleton discussed several of the U.S. Supreme Court's pending cases in a webinar organized by the State and Local Legal Center.
February 1, 2021
The U.S. District Court for the District of Montana vacated and remanded a midnight rule published by the U.S. Environmental Protection Agency in January 2021 that constrained the agency's ability to use the best available science to safeguard public health and the environment. The court's order followed its grant of partial summary judgment to plaintiff environmental groups, including our client Environmental Defense Fund, declaring that EPA violated the Administrative Procedure Act by making the rule effective immediately upon publication without good cause. The court held that EPA's rule was substantive rather than procedural and thus could not take effect until 30 days following Federal Register publication—i.e., until after the incoming Biden Administration had the opportunity to administratively stay the rule. Our attorneys Matt Littleton and Susannah Weaver worked closely with lead attorneys from Gupta Wessler PLLC on the case.
January 19, 2021
The U.S. Court of Appeals for the D.C. Circuit held unlawful both the Trump Administration's repeal of the Obama Administration's carbon dioxide emissions limits for existing power plants under Clean Air Act Section 111(d)—known as the Clean Power Plan—and its replacement, the Affordable Clean Energy rule. The court's per curiam opinion explained that both actions rested on the incorrect premise that the Clean Air Act categorically precludes EPA, in identifying the "best system of emission reduction," from considering the potential for shifting generation from higher- to lower-emitting sources. The Court also set aside EPA's extension of the deadlines for states to implement emissions limits and rejected coal companies' challenges to EPA's authority to regulate carbon dioxide emissions from power plants. The court vacated the ACE rule and remanded for EPA to conduct further administrative proceedings. Sean Donahue and Susannah Weaver represented Environmental Defense Fund in the case, and Donahue presented oral argument on behalf of a coalition of public interest organization petitioners.
January 14, 2021
On behalf of our client Environmental Defense Fund and eleven other environmental and public health organizations, Matt Littleton and Sean Donahue filed a merits brief in the U.S. Court of Appeals for the D.C. Circuit challenging decisions by the U.S. Environmental Protection Agency and National Highway Traffic Safety Administration to weaken their greenhouse gas-emission and fuel-economy standards, respectively. The brief argues that the agencies illegally disregarded adverse effects of air pollution, arbitrarily analyzed the rollback's effects on consumers, made several blatant and significant mistakes in their cost-benefit analysis, and violated the Clean Air Act, Endangered Species Act, and National Environmental Policy Act.
January 7, 2021
Matt Littleton and David Goldberg filed an amicus brief in the U.S. Supreme Court in Cedar Point Nursery v. Hassid, on behalf of the National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and Government Finance Officers Association. The case presents the question whether the uncompensated appropriation of a time-limited easement is a per se violation of the Fifth Amendment's Takings Clause. Our brief argues that the petition should be dismissed as improvidently granted or else the Court should reaffirm that liability under the Clause for time-limited physical intrusions onto private property is not automatic.
Update: Our brief in this case garnered the 2021 Amicus Service Award from the International Municipal Lawyers Association.
November 27, 2020
Today, our attorneys Susannah Weaver and David Goldberg filed an amicus brief in the U.S. Supreme Court on behalf of four leading epidemiologists and public health experts in Harvest Rock Church, Inc. v. Newsom. The brief, filed in support of the State of California's data-driven COVID-19 health protection regime, explained what scientists know about how the coronavirus is transmitted and what activities are highest risk for transmission. The brief ultimately argued that California's restrictions on houses of worship are necessary to control the spread of the disease and that California treats activities that present similar risks similarly. We previously filed a similar amicus brief in the U.S. Court of Appeals for the Ninth Circuit.
November 13, 2020
Our attorneys Susannah Weaver and Sean Donahue filed in the U.S. Court of Appeals for the D.C. Circuit a motion for a partial stay of EPA's rollback of pollution standards for oil and gas sources. In September, EPA finalized two rules to eliminate and weaken protections from oil and gas pollution, including the powerful greenhouse gas methane, and ozone-forming and toxic pollution. Our client the Environmental Defense Fund, along with a coalition of environmental and public health groups, argues that the excess pollution will irreparably harm their members and that the rollback was unreasoned and not supported by the factual record.
October 8, 2020
Today, our attorney Sean Donahue presented oral argument on behalf of 13 public health and environmental organizations in American Lung Ass'n v. EPA, a challenge in the U.S. Court of Appeals for the D.C. Circuit to the Trump Administration's repeal of the Clean Power Plan, the nation's first carbon dioxide emission standards for power plants; and the Administration's adoption of the Affordable Clean Energy (ACE) rule, which requires states to consider efficiency upgrades at coal-fired power plants. Donahue's argument presented the petitioners' challenges to the ACE rule, demonstrating that the rule failed to reflect reasoned consideration of the benefits of emission reduction and the dangers of climate change; violated the Clean Air Act by failing to establish any binding emission limits; arbitrarily disregarded systems of emission reduction that are far more effective than coal-plant efficiency upgrades; and unlawfully exempted natural gas and oil plants from any greenhouse-gas emission control requirements.
September 17, 2020
Two days ago, our attorneys Susannah Weaver and Sean Donahue and our client the Environmental Defense Fund led a coalition of citizens and tribal environmental groups seeking an emergency stay or summary vacatur of EPA's rulemaking rescinding methane regulations from the oil and gas industry. Methane is a super-polluting greenhouse gas which has caused a quarter of global warming to date, and the oil and gas industry is the largest industrial emitter of this pollutant in the United States. The motion argues that EPA's rulemaking is a textbook case of arbitrary and capricious decision making. Today, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit administratively stayed EPA's rule while the Court considers our motion. Twenty-four States, counties and cities have also challenged the rule.
Update: On October 5, 2020, we filed a reply brief in support of our motion.
July 17, 2020
A federal district judge in the Northern District of California today granted summary judgment to the Defendant State of California in a suit brought by the United States challenging a 2017 agreement between California and the provincial governments of Quebec and Ontario, Canada, to harmonize their respective cap-and-trade programs for reducing greenhouse-gas emissions. The federal government claimed that the agreement is unconstitutional under the Foreign Affairs Doctrine, but the court held that the agreement was neither conflict nor field preempted. The Environmental Defense Fund, counseled by our attorney David Goldberg, filed a brief in opposition to the government's unsuccessful motion for summary judgment. The court had previously granted California partial summary judgment on the United States' claims that the agreement violated the Treaty and Compact Clauses of Article I of the U.S. Constitution.
July 17, 2020
Our attorney Susannah Weaver argued today before a three-judge panel in the U.S. Court of Appeals for the Ninth Circuit in California v. EPA. At issue is whether a district judge abused his discretion in declining to disturb a final judgment ordering the Environmental Protection Agency to implement regulations to reduce pollution from municipal solid waste landfills. Years after the Agency violated its mandatory duty to implement these protections, the district court concluded that it had violated the law and enjoined the Agency to finally implement them. Following the unappealed judgment, the Agency revised its regulations to delay implementation deadlines and now argues that this revision compels the district court to modify its judgment by rescinding the injunction. The argument was covered by Inside EPA (subscription required).
July 15, 2020
A federal judge in the Northern District of California today vacated the Bureau of Land Management's attempt to rescind the Waste Prevention Rule, a 2016 regulation that reduces waste of natural gas and methane emissions from oil and gas wells on federal and Indian land. Our client the Environmental Defense Fund brought the case along with the States of California and New Mexico and a large coalition of conservation and tribal citizen groups. Our attorney Susannah Weaver presented argument on the motion for summary judgment. Judge Yvonne Gonzales Rogers concluded that the Bureau's rescission of the rule was unlawful in multiple respects: The Bureau's attempt to define "waste" as taking account of only the economic interests of drillers was contrary to the Mineral Leasing Act; the Bureau unlawfully delegated its responsibility to reduce waste on public lands to the States; the Bureau's determination that reducing waste was overly burdensome was not supported by the record; the Bureau's conclusion that it was cost-beneficial to rescind waste-prevention requirements was based on a flawed "interim" social cost of methane; and the Bureau violated the National Environmental Protection Act by failing to take a hard look at how rescinding the rule would affect the environment.
July 14, 2020
The U.S. Court of Appeals for the District of Columbia Circuit today set aside the Environmental Protection Agency's denial of the State of New York's petition under Section 126(b) of the Clean Air Act. New York's petition seeks relief from air pollution from sources in nine upwind states that contributes to unhealthy air quality in the New York City area. The court held that, in denying New York's petition, EPA had failed to articulate or apply a clear standard for States seeking relief under Section 126(b) and that "EPA's test, at best, was a moving target and, at worst, demanded likely unattainable standards of proof," and that the agency had provided "no coherent explanation" of what information a State must provide to EPA to establish its entitlement to relief from interstate air pollution. Our attorney Sean Donahue co-authored merits briefs for our client Adirondack Council, which intervened in the case together with Environmental Defense Fund and the Sierra Club in support of petitioners New York, New Jersey and New York City.
July 3, 2020
Our client Environmental Defense Fund, along with a coalition of States led by New York, filed a motion for summary judgment in the U.S. District Court for the District of Columbia in New York v. EPA, alleging that the Environmental Protection Agency unreasonable delayed in its duty to set guidelines to reduce methane emissions from hundreds of thousands of sources in the oil and gas sector. The New York Times covered the filing.
June 29, 2020
Our client Environmental Defense Fund, along with ten other public health and environmental organizations, 23 States, three major cities, and three air-quality management districts, filed an opening brief in the U.S. Court of Appeals for the District of Columbia Circuit challenging (i) the Environmental Protection Agency's withdrawal of parts of a waiver of Clean Air Act preemption for California's longstanding greenhouse-gas emission and zero-emission-vehicle standards for passenger cars and light trucks; (ii) EPA's determination that the Clean Air Act does not permit other States to adopt California's greenhouse-gas emission standards; and (iii) regulations promulgated by the National Highway Traffic Safety Administration declaring all state greenhouse-gas and zero-emission-vehicle standards preempted by the Energy Policy and Conservation Act of 1975. Our attorneys Matt Littleton and Sean Donahue co-authored the brief, which argues that all these actions exceed the agencies' respective statutory authorities and are otherwise unlawful in several respects.
Update: On October 13, 2020, we filed a reply brief.
May 12, 2020
Our client Environmental Defense Fund, along with other public health and environmental organizations, filed a brief as respondent-intervenor in support of the Environmental Protection Agency's authority to regulate greenhouse-gas emissions from tractor-trailers. Our attorneys Susannah Weaver and Sean Donahue co-authored the brief with a team of attorneys from the public health and environmental organizations. The brief argues that EPA's 2016 regulation setting requirements for the trailer half of tractor-trailers (commonly called "18-wheelers") was within the agency's authority to set greenhouse gas emission standards for motor vehicles.
April 17, 2020
Our client Environmental Defense Fund, together with a coalition of other public health and environmental organizations, filed its opening brief challenging the Environmental Protection Agency's repeal and partial replacement of the Clean Power Plan, a major regulatory program adopted by the Obama Administration in 2015 to limit greenhouse gas emissions from power plants. Co-authored by our attorneys Sean Donahue and Susannah Weaver and a team from the petitioning organizations, the brief disputes EPA's conclusion that the Clean Air Act forbids the agency, in identifying the "best system of emission reduction," from considering the measures utilities actually us to reduce carbon dioxide emissions; and it argues that EPA's replacement rule unlawfully fails to achieve meaningful emission reductions and arbitrarily disregards record evidence that far more effective means of cutting power-plant pollution are available at reasonable cost.
April 1, 2020
A panel of the U.S. Court of Appeals for the Second Circuit today held that the Freedom of Information Act requires the Environmental Protection Agency to disclose its computer model that estimates the costs to automakers to comply with EPA's greenhouse-gas emission standards for passenger cars and light trucks. In August 2018, after EPA proposed to weaken its standards based on dramatically higher cost estimates from a different model, our client Environmental Defense Fund joined the Natural Resources Defense Council in requesting EPA's model under FOIA. EPA claimed that the model was part of its "deliberative process" and declined to release it. Reversing a judgment of the U.S. District Court for the Southern District of New York, the Second Circuit agreed with the plaintiffs that the model is a factual, investigative tool whose disclosure will not reveal the agency's deliberative process. Our attorney Matt Littleton represents Environmental Defense Fund in the case.
March 16, 2020
Our client Environmental Defense Fund joined the States of California, Illinois, Maryland, New Mexico, Oregon, Pennsylvania, and Vermont in filing an answering brief as appellees in the U.S. Court of Appeals for the Ninth Circuit. The brief, co-authored by our attorneys Susannah Weaver and Matt Littleton, defends the U.S. District Court for the Northern District of California's decision not to grant the U.S. Environmental Protection Agency relief from a final judgment that orders the agency to implement its own 2016 regulations to reduce emissions of methane and other harmful pollutants from landfills. Earlier this spring, the Ninth Circuit stayed the district court's order but expedited review of the merits of EPA's appeal.
March 12, 2020
The U.S. Court of Appeals for the Northern District of California today granted partial summary judgment to the State of California in a suit brought by the United States challenging a 2017 agreement between California and the provincial governments of Quebec and Ontario, Canada, to harmonize their respective cap-and-trade programs for reducing greenhouse-gas emissions. The federal government claimed, among other things, that the agreement violated the Treaty and Compact Clauses of the U.S. Constitution, and the district court rejected both claims. Our attorney David Goldberg represents Environmental Defense Fund, which intervened along with two other groups in support of the State and filed a brief in opposition to the government's motion for partial summary judgment.
March 5, 2020
Activist DeRay McKesson today petitioned the U.S. Supreme Court for a writ of certiorari to the U.S. Court of Appeals for the Fifth Circuit in a case arising from July 2016 protests that erupted in Baton Rouge, Louisiana, after two white police officers shot and killed Alton Sterling, a black man. An unnamed police officer sued McKesson for monetary damages and alleged that, in the midst of the protest, the officer was struck by an object thrown by an unidentified protester. In a divided opinion, a panel of the Fifth Circuit held that a leader of a protest demonstration may be held personally liable for injuries inflicted by an unidentified person's violent act there, even though the leader did not intend, authorize, direct, or ratify the perpetrator's act, or otherwise engage in or incite violence of any kind. The petition, filed by our attorney David Goldberg along with co-counsel from the American Civil Liberties Union, argues that the officer's suit is foreclosed by the First Amendment and the Supreme Court's decision in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
December 16, 2019
Today, the U.S. Supreme Court denied a petition for a writ of certiorari in Smyth v. Falmouth Conservation Commission, a regulatory-takings case. Our attorneys Matt Littleton and David Goldberg authored the successful brief in opposition of the Town of Falmouth, Massachusetts. The petitioner had asked the Court to overrule its 1978 decision in Penn Central Transportation Co. v. City of New York, and to relax the constitutional standard for proving a taking of private property by regulation.
November 5, 2019
Today, a judge in the U.S. District Court for the Northern District of California denied the request of the U.S. Environmental Protection Agency to, in light of a new regulation issued by the agency, vacate a judgment requiring EPA to implement its 2016 regulations to reduce emissions of methane and other harmful pollutants from landfills. Our attorney Susannah Weaver defended against EPA's motion and argued the cause on behalf of our client Environmental Defense Fund.
October 9, 2019
Today, a judge in the Michigan Court of Claims entered a final judgment upholding the state's 2018 Lead and Copper Rule against a constitutional and administrative-law challenge brought by a handful of public water supplies. The Rule, issued in the wake of the Flint water crisis, establishes the Nation's most health-protective action level for lead in drinking water. Our attorneys Matt Littleton and Susannah Weaver authored a series of amicus briefs defending the Rule on behalf of Natural Resources Defense Council and the Great Lakes Environmental Law Center.
September 27, 2019
Our client the Environmental Defense Fund and eight other public-interest organizations sued the National Highway Transportation Safety Administration in the U.S. District Court for the District of Columbia to challenge a regulation published today that declares all state and local regulation of greenhouse-gas emissions from passenger cars and light trucks preempted notwithstanding the Clean Air Act's express waiver of preemption for California to regulate such emissions. The complaint, filed by our attorneys Matt Littleton and Sean Donahue, alleges that the rule exceeds the agency's statutory authority and is procedurally and substantively unlawful.
September 21, 2019
Our attorney Matt Littleton, along with former co-counsel Terry Sachs, delivered a presentation today on "The Nuts and Bolts of Defending Takings Claims" to the annual conference of the International Municipal Lawyers Association.
September 6, 2019
The U.S. Court of Appeals for the District of Columbia Circuit heard oral argument today in California v. EPA, in which several states, a coalition of public-interest organizations including our client Environmental Defense Fund, and a coalition of clean-technology companies have challenged EPA's 2018 final determination that its extant vehicular emission standards for greenhouse gases are "not appropriate." Our attorney Sean Donahue presented oral argument on behalf of the public-interest petitioners.
July 19, 2019
The U.S. Court of Appeals for the Second Circuit issued an opinion today holding that New York City violated the Due Process Clause by depriving taxi drivers whose licenses are suspended following arrest of a meaningful post-suspension hearing, reversing a contrary judgment of the U.S. District Court for the Southern District of New York. The plaintiff drivers are represented by our attorney David Goldberg, who presented oral argument to the Second Circuit along with co-counsel.
May 6, 2019
Today, a judge in the U.S. District Court of the Northern District of California granted summary judgment to our client the Environmental Defense Fund and eight states in their challenge to EPA's failure to implement a regulation to reduce emissions of methane and other harmful pollutants from landfills. Noting that EPA was "long-overdue" in complying with its non discretionary duties, the court ordered EPA to fully implement the regulation in the next six months. The decision has been covered in InsideEPA and Law360.
April 11-12, 2019
Matthew Littleton delivered two presentations–the first on recent developments in takings law, the second on inverse-condemnation defense–at the annual Land Use Institute sponsored by the ABA Section of State and Local Government Law.
April 9, 2019
Today, the U.S. Court of Appeals for the Tenth Circuit vacated a district court's injunction against the Bureau of Land Management's 2016 Waste Prevention Rule, a regulation aimed at reducing waste of natural gas from the development of publicly- and tribally-owned oil and gas resources. Our attorney Susannah Weaver represented the Environmental Defense Fund as an intervenor defending the Waste Prevention Rule, and co-authored a brief arguing that the district court order enjoining the Rule was unlawful.
March 19, 2019
On behalf of Environmental Defense Fund, and in conjunction with attorneys from the State of California, our attorney Susannah Weaver submitted a brief and reply in support of a motion for summary judgment in a Clean Air Act citizen suit filed in the Northern District of California to compel the U.S. Environmental Protection Agency to implement its 2016 guidelines for air-pollutant emissions from municipal solid-waste landfills. Oral argument on the motion is scheduled for April 25, 2019.
February 19, 2019
Sean Donahue delivered a lecture at the University of Michigan Law School entitled "Litigating Trump's Environmental Deregulation."
January 25, 2019
Matthew Littleton delivered a presentation on Knick v. Township of Scott to the American Law Institute's annual eminent-domain conference.
January 16, 2019
The U.S. Supreme Court heard re-argument in Knick v. Township of Scott today. Argument was originally heard on October 3, 2018. Our attorneys Matthew Littleton and David Goldberg authored the merits and supplemental briefs for Respondent Township of Scott, Pennsylvania. The question presented is whether the Court should overrule its 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank and reinterpret Section 1983 to provide a federal cause of action to a person alleging a deprivation of private property, but not a deprivation of the constitutional right to recover just compensation for that property.
December 21, 2018
Today, a federal judge in the Northern District of California denied the Environmental Protection Agency's motion to dismiss a citizen suit brought to enforce EPA's duty to protect the public health and welfare from pollution emitted by solid-waste landfills. Our attorney Susannah Weaver authored an opposition to EPA's motion to dismiss on behalf of our client, the Environmental Defense Fund. The court agreed with EDF that a regulation can create a non-discretionary duty under the Clean Air Act.
November 5, 2018
Today, the U.S. Supreme Court heard oral argument in Virginia Uranium, Inc. v. Warren. Our attorneys Sean Donahue, David Goldberg, and Matthew Littleton authored an amicus brief on behalf of several environmental groups in support of respondents. The question presented is whether the Atomic Energy Act preempts a Virginia law that regulates uranium mining on private land.
July 26, 2018
The U.S. Environmental Protection Agency today reversed its harmful decision to allow unlimited super-polluting trucks on the roads after our attorneys Matthew Littleton, Susannah Weaver and Sean Donahue sued the agency on behalf of the Environmental Defense Fund. EPA reversed course soon after our attorneys obtained an administrative stay of the agency's decision from the U.S. Court of Appeals for the D.C. Circuit.
June 29, 2018
Sean Donahue participated in a teleforum at the Federalist Society, entitled EPA's CAFE: What's on the Menu for Fuel Economy and Greenhouse Gas Standards?
June 8, 2018
Susannah Weaver participated on a panel at the American Constitution Society Annual Convention, entitled Deregulation, Defunding, and Deference: The Administrative State in the Age of Trump.