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Appellate Practice

May 5, 2017

SCOTUS' Turn on Net Neutrality? SCoCA on Long-Range Climate Targets' Impact on CEQA

Net neutrality may meet SCOTUS review, after the D.C. Circuit declines to rehear en banc its approval of the rules. Professor Stuart Benjamin (Duke Law) explains the current regulations, the First Amendment elements of the appeal, and why ISPs may pursue it though the new FCC chair seems set to re-write the rules. Professor Deborah Sivas (Stanford Law) discusses the Cal. Supreme Court's latest look at how developers must reckon with the state's long-range greenhouse gas reduction targets


Today we regard net neutrality's fate after a D.C. Circuit ruling Monday opens the door to potential SCOTUS review. We'll also discuss an important environmental law case argued this week before the state's high court.
First, Professor Stuart Benjamin, of Duke University Law School, joins the show to chat about a D.C. Circuit ruling from Monday, in which the appellate court declined to rehear en banc its 2-1 approval, issued last summer, of FCC regulations that mandate net neutrality. Specifically, those rules classify internet service providers as common carriers, like classic telephone companies, and largely restrict ISPs from affecting the transmission of information from websites to internet consumers by, say, throttling the speed of such information, or charging websites a premium to get their information to users more quickly.
After years or wrangling over just how ISPs should be regulated, those neutrality rules went into place in 2015; but their clearing of this latest legal obstacle far from assures their finality. As Professor Stuart discusses, a Supreme Court appeal likely awaits, with a new ninth justice unfriendly to the type of deference shown the FCC by the D.C. Circuit. Moreover, the FCC's new Republican chair, Ajit Pai, has expressed clear intent to rework the commission's rules and relax regulations on ISPs.
In addition to analyzing the legal merits of the competing sides here, including some interesting strands of First Amendment jurisprudence, Professor Stuart explains the strategy of forging ahead with a SCOTUS appeal notwithstanding the likely-impending rule changes.
Then, Professor Deborah Sivas, of Stanford Law School, visits to discuss oral arguments heard yesterday before the Cal. Supreme Court in Cleveland National Forest Foundation v. San Diego Association of Governments,
which regards a range of state laws and agency guidance on climate change mitigation, and just how much those laws and policies demand of local governments completing CEQA environmental impact reports before undertaking large land use development projects. Professor Sivas, and the lower appellate courts that have heard this case so far, contend that would-be developers must be more clear than was the governmental association here, as to just how much a land use project will deviate from the state's long-term goals to reduce greenhouse gas emissions. Professor Sivas will break down the complex case for us, and assess yesterday's arguments. <!-- Weekly Appellate Report Podcast -->


Brian Cardile

Daily Journal Staff Writer

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