Monday, August 28, 2017

State of North Dakota v. McCarthy (9th Cir. - Aug. 28, 2017)

I thought that I had suddenly lost substantial intellectual function when I read the caption of today's opinion by the Ninth Circuit.  Or at least needed a new pair of glasses.  Is the plaintiff in this case really North Dakota?!  Because last time I checked, I'm pretty sure North Dakota isn't in the Ninth Circuit.

But yes.  It's true.  North Dakota.  That North Dakota.


So I gotta admit, I was so befuddled by the caption, I skimmed the opinion at first to just figure out how the heck the case was in the Ninth Circuit if it involves North Dakota.  And I had to read a lot of pages just to figure it out.

But then it all made sense.

North Dakota wasn't the plaintiff to begin with.  The Sierra Club was.  It sued to compel the EPA to do something about sulfer dioxide emissions.  And then a bunch of states, led by North Dakota, that didn't want the EPA to do anything intervened in the lawsuit.

Hence why North Dakota leads the caption and argued the case.  Since it was objecting to a consent decree that the EPA and the Sierra Club had entered into to resolve the suit.

Okay, then.  Welcome to California, North Dakota.  You'll find that it's a bit warmer out here than what you're used to.  Especially (at least down here) this week.

As for the merits, though, uh, sorry about that.  North Dakota loses in the district court.  And loses on appeal as well.

Sorry about that.  But I hope that your lawyers at least enjoyed their stay here.

And wore lots of sunscreen.