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American Bar Association
American Bar Association Energy and Resources Committees

Constitutional Law Committee

2010-2011 Committee Co-Chairs:

Norman A. Dupont, Richards Watson & Gershon, Los Angeles, CA
Patricia Ross McCubbin, SlU School of Law, Carbondale, IL

2009-2010 Committee Awards

This Committee was recognized with the following awards within the Cross Practice Committees. (more)

• 2009-2010 Best Overall Award
• 2009-2010 Best Programs Award

Message from the Co-Chairs

Dear Constitutional Law Committee members:

It’s an exciting time for constitutional issues in environmental law!  In June, the United States Supreme Court decided Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), exploring the circumstances under which a state court’s decision can create a “judicial taking” of private property. All eight of the participating Justices agreed that a Florida Supreme Court ruling on state real property law did not constitute a taking in this particular context involving sudden additions (or deletions) to Florida’s sandy shore. The Justices, however, wrote a total of five different opinions, revealing sharp divisions on the underlying issues and even on the appropriate clause of the Constitution. Justices Kennedy and Sotomayor suggested that due process might be an adequate constitutional doctrine limiting state courts, a notion that provoked a derisive response from Justice Scalia.

To address the Stop the Beach Renourishment decision, the Committee sponsored a very successful Quick Teleconference on July 22. We thank Vice-Chair Lisa Goldman for her superb efforts in organizing that QT, which featured two lawyers who argued the case and two lawyers who authored briefs in the case.

In addition, the Committee will be publishing a newsletter shortly with five articles giving background on the Stop the Beach Renourishment decision and analyzing its implications for the future. Many thanks to Committee Vice-Chair Jim Wedeking for lining up the excellent contributors and to Committee Vice-Chair Robin Craig for shepherding the articles to publication.

Last term, the Supreme Court also decided Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010), in which a majority of the Court found that environmental groups and farmers had Article III standing to seek injunctive relief against a federal agency's deregulation of Monsanto’s “Roundup-Ready” genetically modified alfalfa. This is the first time in recent memory that a clear majority (8 members) of the Court voted for standing in an environmental context. We will have to wait, however, to see whether this constitutes merely the "farmer's exception" to Article III standing requirements!

And the constitutional law issues just keep coming. In early August, a petition for certiorari was filed with the United States Supreme Court in American Electric Power Co., Inc. (AEP) v. Connecticut, the highly-publicized Second Circuit decision (582 F.3d 309) allowing various state and municipal plaintiffs to bring a nuisance action against major power companies for their greenhouse gas emissions. AEP and the other petitioners are asking the Supreme Court to address three key constitutional questions: (1) whether the plaintiffs have standing; (2) whether the federal common law nuisance claim is displaced by the Clean Air Act; and (3) whether the case presents political questions not suited for judicial resolution. If the Supreme Court takes the case, it could result in a landmark decision. The Solicitor General, however, just filed a brief on behalf of the Tennessee Valley Authority, asking the Justices to vacate the lower court ruling and remand the matter back to the Second Circuit. The Solicitor General brief argues that (1) the nuisance plaintiffs do not have prudential standing; (2) recent actions by EPA displace federal nuisance claims; and (3) the lower court should address these issues before the Justices do so.

In late July, the U.S. Court of Appeals for the Fourth Circuit issued an important preemption decision in another greenhouse gas nuisance case. In North Carolina v. Tennessee Valley Authority, 2010 WL 2891572 (4th Cir., July 26, 2010), the appellate court refused to allow a state law nuisance claim to interfere with the comprehensive regulatory scheme established by Congress.

The Committee proposed a panel on nuisance cases for the Section’s Spring Meeting, which will be held in Salt Lake City in March. We also proposed a panel on due process claims in natural resource damages cases, with a particular eye toward claims that might arise from the BP oil spill.

Finally, constitutional questions will be discussed at the Section’s Fall Meeting in New Orleans on September 29 through October 2. Co-Chair Trish McCubbin will moderate a panel on greenhouse gas regulation under the Clean Air Act which, among other things, will ask whether challenges to EPA’s endangerment finding are ripe and whether the petitioners have standing. We hope to see you at that panel, to be held on Thursday, September 30, at 10:30 a.m., and at the Committee Luncheon on Friday, October 1. Vice-Chair Andy Jacoby, who graduated from Tulane Law School, has promised some “insider” hints on enjoying New Orleans, available only to those who join us at the Committee Luncheon (wink, wink).

Don’t forget about the public service opportunity at the Fall Meeting. On Wednesday, September 29, you can help plant trees in New Orleans as part of SEER’s One Million Trees project.

For more information on the Fall Meeting, see http://www.abanet.org/environ/fallmeet2010/home.shtml.

We look forward to seeing you in New Orleans!

Trish McCubbin and Norman A. Dupont
Co-Chairs, Constitutional Law Committee

Committee Resource

The Federal Information Manual The Federal Information Manual

Are you or a client faced with a request for information from a federal agency, or are you seeking information from an agency? If your business involves seeking, using, or sharing information in the hands of the U.S. government, The Federal Information Manual is the comprehensive guide you need to understand the maze of laws, regulations, and orders that govern this information.

The Federal Information Manual provides an easy-to-navigate and accessible explanation of the most well-known of these statues, the Freedom of Information Act (FOIA). It contains useful information for practitioners, including explaining how to submit a successful FOIA request and checklists to use in preparing the request.

Leadership

Co-Chairs:
Norman A. Dupont

Patricia Ross McCubbin

Vice Chairs:
Committee Newsletters
Robin K. Craig

Membership
George B. Wyeth

Programs
Lisa Goldman

Public Service
Andrew C. Mergen

Technology
Andy Jacoby

The Year in Review
James Wedeking

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