The Supreme Court’s NOT Top 10: Cases the Justices Wrongly Rejected Last Term

supreme courtThe usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court’s supposed pro-business tilt, you know it wasn’t a banner year for business.

Of course there were a few notable losses (King v. Burwell itself, Oneok, and Texas Dept. of Housing come to mind). But the fact that free enterprise did not fare well this term had comparatively little to do with the decisions the Supreme Court issued. Rather, business civil liberties suffered more overall from the various state supreme court and federal courts of appeals cases that the high court left on the cutting-room floor.

The tally that follows comprises more than just the cases of a disappointed cert seeker. WLF did not participate in more than half of the examples discussed below. However, the cert petitions mentioned here are all cases where free enterprise, individual and business civil liberties, or rule of law interests were at stake. From the free-market vantage point, it once again appears that the Court did not make enough room on its docket for cases implicating significant liberty interests. By choosing a lighter load, the Court allows legal uncertainty to linger, lower-court disobedience to fester, adventuresome new legal theories to propagate, and injustices implicating millions, if not billions, of dollars to prevail.       Continue reading

Ninth Circuit Adds to Landowners’ Woes with Another Endangered Species Act Litigation Loss

sturgeonGuest Commentary

By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall.

The U.S. Court of Appeals for the Ninth Circuit recently decided that the National Marine Fisheries Service (NMFS) need not perform a thorough balancing of the costs and benefits of an Endangered Species Act (ESA) critical habitat designation, and its decision not to exclude certain areas is judicially unreviewable. The ruling directly impacts over 12,000 square miles of waters, shorelines, and land areas of California, Oregon, and Washington. Its broader impact, however, will be much greater. NMFS and other agencies implementing the ESA, as well as the activists that sue under the law, will feel emboldened to take an even more aggressive approach, to the detriment of property owners, builders, and the entire development industry. Continue reading

EPA Study on Hydraulic Fracturing’s Drinking Water Impact Puts Anti-Gas Activists on Defensive

natural gasGuest Commentary

by Chelsie Kidd, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

On June 4, 2015 the Environmental Protection Agency (EPA) released a much anticipated draft assessment of the potential impacts of hydraulic fracturing on drinking water resources. The draft assessment was conducted in response to Congress’s request to study the relationship between hydraulic fracturing and drinking water resources.

For decades, the oil and gas industry has utilized hydraulic fracturing, also called “fracing” or “fracking,” to increase oil and gas production from shale formations that could not otherwise be profitably mined. Opponents to hydraulic fracturing have focused on the actual process, when the mixture of water and proppant (commonly sand), and a small amount of chemicals, is injected underground. Fracturing’s purported impact on potable water has figured prominently in activists’ demonization campaigns. When he’s not busy playing an angst-ridden scientist with anger issues, actor Mark Ruffalo is writing unscientifically about how fracturing makes our water flammable. Propaganda film Gasland included a since-debunked image of tap water being set on fire. Opponents have advocated for cities and states to ban hydraulic fracturing outright. As a result, two states with natural gas resources—New York and Maryland—have respectively banned the practice and put in place a fracking moratorium. In California, a lawsuit has even been filed against the state under anti-discrimination law for allowing fracturing in a manner that supposedly has a disparate impact on minority children. Continue reading

Supreme Court Observations: Michigan v. EPA

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP

On June 29, in Michigan v. EPA, the U.S. Supreme Court reversed and remanded EPA’s Mercury and Air Toxics Standards (“MATS”) rule to the D.C. Circuit, holding the agency should have considered costs when determining whether or not to regulate emissions of hazardous air pollutants from power plants.  The MATS rule, promulgated in 2012, had set standards for emissions of toxic air pollutants such as mercury from new and existing coal and oil-fired power plants.

This decision is a significant victory for industry on the legal interpretation of Section 112 of the Clean Air Act (“CAA”).  However, it raises major uncertainties with regard to the steps the D.C. Circuit and EPA will take towards emissions of mercury and other air toxics from power plants going forward, as well as with regard to anticipated litigation surrounding EPA’s soon to be promulgated “Clean Power Plan” regulations. Continue reading

EPA Shifts its Legally Suspect “Environmental Justice” Agenda into Higher Gear

EPA-LogoIn one of our first WLF Legal Pulse posts five years ago, we wrote about efforts at the Environmental Protection Agency (EPA) to revitalize “environmental justice” (EJ), which had essentially laid dormant since the Clinton Administration. The EJ movement’s influence has gradually spread, with EPA citing “EJ concerns” among its reasons for opposing the Keystone XL pipeline, and activists utilizing EJ to successfully oppose express toll lanes in Arlington, Virginia and agitate for severe development limits in the Los Angeles area.

Several recent developments at EPA aim to inject the environmental justice movement even further into federal regulatory policy-making. Continue reading

Texas Uses Preemption Power to Shut Down Local Fracking Bans, Oklahoma Quickly Follows

Guest Commentary

by Sara Thornton, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

The state legislatures in Texas and Oklahoma recently enacted bills that expressly preempt any local ordinance that prohibits hydraulic fracturing, also called “fracing” or “fracking.” Texas Governor Greg Abbott signed Texas’s HB 40—intended as a direct response to the fracking ban in Denton, Texas—on May 18, 2015, and Oklahoma Governor Mary Fallin signed Oklahoma’s SB 809 on May 29, 2015.

Barnett Shale

Barnett Shale

Although Denton’s ban received national media coverage—likely because of its location on the Barnett Shale—the city of Denton was not the first local government to attempt to extend its police power by imposing an outright ban on energy extraction. Localities across the country, in over 470 towns, cities, and counties—from Hawaii to New Mexico to West Virginia to New York—have attempted to skirt state authority by implementing local regulations that ban fracking, despite their lack of expertise in regulating the industry. Continue reading

WLF Briefing to Examine Office of Management and Budget’s Role in Regulators’ Use of Science

PodiumPic1Science and Federal Regulation: Is the Office of Management and Budget an Effective Gatekeeper?

WLF Media Briefing, Tuesday, May 19, 10:00-11:00 a.m. EDT

Location: 2009 Massachusetts Avenue, NW (WLF headquarters)—RSVP to glammi@wlf.org or click HERE for free registration to view program live online

Speakers: