by Kirsten E. Small
About a month ago, the Fourth Circuit vacated an injunction that required the Tennessee Valley Authority to immediately install emissions controls at four of its plants. The Court determined that the "defined standards of the Clean Air Act" preempted a common law public nuisance claim--"an ill-defined tort of last resort." (Judge Wilkinson is a poet, and he didn't even know it.) The Court also concluded that the district court had erred in applying North Carolina law extraterritorially.
I know next to nothing about environmental law, but evidently this decision is kind of a big deal. Law360 yesterday published an article explaining that the decision is significant because of how thoroughly it responds to the arguments in support of the tort of public nuisance for environmental claims.
Happy weekend, everyone!
Showing posts with label Preemption. Show all posts
Showing posts with label Preemption. Show all posts
Friday, August 20, 2010
Thursday, June 17, 2010
A mom tomato and a dad tomato are walking down the street ...
Kirsten E. Small
Time to play a little "ketchup." While I have been busy vacationing and brief writing (thankfully, not at the same time), the Fourth Circuit has been busy issuing published opinions. Most of them have not been terribly noteworthy, but there are a few worth pointing out, to wit:
United States v. Richardson: Holds that AOL was not acting as a government agent when it reported (pursuant to a mandatory reporting statute) information it had acquired by use of an internally-developed, non-mandatory filtering program. The panel distinguished Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602 (1989), on the basis that Skinner involved a regulatory scheme that dictated certain procedures by the railway that were designed to preserve evidence for government use. The regulatory scheme challenged by Richardson was entirely passive ("If you find something, do please let us know") and thus did not create the kind of government involvement that sparks Fourth Amendment protections.
United States v. Joshua: Holds that a person is "in the custody of the Bureau of Prisons" for purposes of 18 U.S.C. § 4248 (authorizing indefinite civil commitment of sexually dangerous persons) only when in the BOP's legal custody. Joshua, who was convicted by a military tribunal and merely housed at a BOP facility as a "contractual boarder," was not in the BOP's legal custody and therefore not subject to civil commitment under § 4248.
In Norfolk Southern Railway v. City of Alexandria, the court held that the Interstate Commerce Commission Termination Act (ICCTA) preempted the City's attempts to regulate Norfolk Southern's transport of bulk ethanol. At least, I think that was the holding. It was kind of hard to stay awake all the way through.
Did you know there is a statute that provides a damages remedy for the wrongful conviction of an innocent person in federal court? Neither did I. The Fourth Circuit considered the application of the statute in United States v. Graham. Interesting stuff.
Time to play a little "ketchup." While I have been busy vacationing and brief writing (thankfully, not at the same time), the Fourth Circuit has been busy issuing published opinions. Most of them have not been terribly noteworthy, but there are a few worth pointing out, to wit:
United States v. Richardson: Holds that AOL was not acting as a government agent when it reported (pursuant to a mandatory reporting statute) information it had acquired by use of an internally-developed, non-mandatory filtering program. The panel distinguished Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602 (1989), on the basis that Skinner involved a regulatory scheme that dictated certain procedures by the railway that were designed to preserve evidence for government use. The regulatory scheme challenged by Richardson was entirely passive ("If you find something, do please let us know") and thus did not create the kind of government involvement that sparks Fourth Amendment protections.
United States v. Joshua: Holds that a person is "in the custody of the Bureau of Prisons" for purposes of 18 U.S.C. § 4248 (authorizing indefinite civil commitment of sexually dangerous persons) only when in the BOP's legal custody. Joshua, who was convicted by a military tribunal and merely housed at a BOP facility as a "contractual boarder," was not in the BOP's legal custody and therefore not subject to civil commitment under § 4248.
In Norfolk Southern Railway v. City of Alexandria, the court held that the Interstate Commerce Commission Termination Act (ICCTA) preempted the City's attempts to regulate Norfolk Southern's transport of bulk ethanol. At least, I think that was the holding. It was kind of hard to stay awake all the way through.
Did you know there is a statute that provides a damages remedy for the wrongful conviction of an innocent person in federal court? Neither did I. The Fourth Circuit considered the application of the statute in United States v. Graham. Interesting stuff.
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