Cross-posted at WLF’s Forbes.com contributor page
Instead of “The Golden State,” perhaps California should be known as “The Precautionary State.” California state, city, and county governments routinely take the maxim “better safe than sorry” to an extreme. Proposition 65 and San Francisco’s “cell phones cause cancer” warnings are two that we’ve addressed before here at The Legal Pulse. To that list one can now add Alameda County’s “Product Stewardship Program,” which aims to prevent pharmaceutical products from entering the water supply, something even the hyper-cautious World Health Organization believes isn’t a significant or current problem. Worse yet, because the program imposes the burden of running and paying for disposal entirely on out-of-state drug manufacturers, the county ordinance in question is also unconstitutional.
Cost and Burden Shifting. Alameda County had operated a pharmaceutical product disposal program itself for several years. But in 2011, light bulbs went on in county supervisors’ minds: instead of making taxpayers pay for this program (despite the fact that they benefit from medicines and their “proper” disposal), let’s make those who sell the products pay. The original plan called for both local pharmacies and pharmaceutical manufacturers to pay, but the pharmacies flexed their political muscles and in the end the ordinance exempted them from the program. So the program now benefits local interests at the expense of drug makers who do not manufacture in Alameda County.
Commerce Clause Challenge. Trade associations representing branded and generic drug makers sued Alameda County in federal court, arguing that the ordinance unconstitutionally regulated and burdened interstate commerce. On August 28, Judge Richard Seeborg of the Northern District of California denied the associations’ summary judgment motion, ruling that the ordinance neither discriminated against interstate commerce nor favored local interests over out-of-state ones. The associations have appealed to the Ninth Circuit. Last week, Washington Legal Foundation, on behalf of itself and the California Healthcare Institute, filed an amicus brief supporting the appeal. Continue reading
by Svend Brandt-Erichsen, Marten Law PLLC*
A U.S. Court of Appeals for the Ninth Circuit panel ruled last month in Washington Environmental Council v. Bellon that environmental plaintiffs do not have standing to bring a citizen suit under the federal Clean Air Act to force state agencies to regulate greenhouse gas (GHG) emissions from five oil refineries in the State of Washington. The district court had granted summary judgment to the environmental groups, holding that air agencies were required to regulate GHG emissions under a Washington regulation that requires existing sources to employ reasonably available control technology (RACT).
On appeal, the Ninth Circuit concluded that the environmental groups had not established standing to pursue their claims. Applying the federal three-part standing test, the court assumed (without deciding) that the environmental groups had shown injury-in-fact from GHG emissions due to climate change, but concluded that they had failed to establish a causal link between GHG emissions from the five refineries and the claimed climate change injuries, or that a court order requiring regulation of the refineries’ GHG emissions would redress their claimed injuries. A Ninth Circuit vote on whether the panel’s decision should be reviewed en banc is pending.
To establish the first standing element (injury-in-fact), members of the environmental groups had submitted declarations attesting to recreational, aesthetic, and economic injuries that they have experienced and attribute to climate change impacts in Washington. The Ninth Circuit panel stated that it would assume, without deciding, that the declarations provided the sort of evidence of immediate and concrete injuries necessary to satisfy the first standing element of injury-in-fact. Continue reading
Cross-posted at Forbes.com’s WLF contributor page
Washington Legal Foundation, along with other organizations, business, and individuals with an interest in the Supreme Court and free enterprise cases before it, watched with great anticipation this morning as the justices issued their first new list of certiorari grants since the Court adjourned last June (the so-called Long Conference). We came away from the big cert grant morning, as likely did many other interested parties, wanting more.
The orders list is here. The grants include a tax case, United States v. Quality Stores addressing whether severance payments made to employees whose employment was involuntarily terminated are taxable. Two other grants relate to the standard of review the U.S. Court of Appeals for the Federal Circuit uses when assessing a district court’s determination that a case is “exceptional” for purposes of imposing attorneys’ fees and other sanctions. Those cases are Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Allcare Management Systems Inc.
The final cert grant impacting free enterprise is Petrella v. MGM, which involves the movie Raging Bull and the defense of laches against claims of copyright infringement. Marcia Coyle at National Law Journal discussed the interesting facts of the case in a September 16 story.
The bigger story from the big cert grant morning was which petitions the Court did not act on. WLF filed amicus briefs in support of review in a number of the cases, which we’ll indicate below (all noted on SCOTUSblog’s “Petitions we Are Watching” page).
Failure to act on these and other petitions does not mean that the Court cannot reconsider them in a future “conference,” and it does not mean that they have been denied. The Court will be issuing an order list on First Monday, October 7, but that order traditionally has only contained cert denials.
In an April Featured Expert Contributor post, Appeals Court Rejects EPA Effort to Avoid Judicial Review Through Guidance Documents, Hunton & Williams’ Allison Wood examined a U.S. Court of Appeals For the Eighth Circuit decision, Iowa League of Cities v. EPA. The court ruled that EPA violated the Administrative Procedures Act when it changed two policies for regulating municipal wastewater treatment plants through letters sent to Senator Charles Grassley. Such changes constituted “rules” for which EPA should have engaged in formal notice and comment rulemaking.
In a July 30 order, the court ordered EPA to pay Iowa League of Cities $526,138.41 in attorneys’ fees. The Eighth Circuit panel had initially rejected the League’s request for fees under Clean Water Act Section 509(b)(3) . The League filed a Petition for Partial Rehearing, which EPA opposed.
The court agreed that the League was a “prevailing party” under the Clean Water Act, and that the lawsuit
assisted in the proper implementation of the CWA by upholding ‘the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution’ and by ensuring public participation in the development of effluent limitations.
We’re pleased to see that the cost, and the risk, of avoiding public accountability have just gone up for EPA and other federal agencies.
by John Andren, Washington Legal Foundation*
It’s not often that a court decision like Waldburger, et al. v. CTS Corporation comes along, one which is interesting not only because of its potentially broad impact, but also because of the case’s intriguing ancillary characteristics. The case featured plaintiffs (represented by law students) arguing for federal preemption so they could bring their state law nuisance claim; a defendant and the U.S. government opposing preemption; and a deeply divided 2-1 outcome in the U.S. Court of Appeals for the Fourth Circuit, where all three judges were Obama appointees.
Waldburger was at its core a case about statutory interpretation and the crucial distinction between statutes of limitations—laws barring claims brought after a certain amount of time has elapsed since either the tortious or criminal act was committed or the claim was discovered—and statutes of repose—which bar claims brought later than a (typically longer) set number of years after the date of the defendant’s last action regardless of when any claim was discovered.
Plaintiffs in the case, who were represented at oral argument by a third-year law student from Wake Forest University, sought compensation for real property damage from CTS Corporation for the alleged dumping of toxic chemicals by one of CTS’s subsidiaries almost 30 years ago. CTS argued that CERCLA’s statute of limitations provision did not preempt North Carolina’s 10-year statute of repose, and since the defendant’s last actions were well over 20 years ago, plaintiff’s claims were barred. Interestingly, the Department of Justice shared time with CTS at oral argument to argue against preemption. DOJ is involved in an Eleventh Circuit case where the United States is the defendant and is opposing application of CERCLA’s limitations provision. Continue reading
by Taylor Darby, a 2013 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.
Methane emissions, and their contribution to climate change, are one of the many reasons environmental activists routinely offer as support for banning oil and gas extraction techniques such as hydraulic fracturing. Several recent developments call into question the viability of this argument. First, in April, the Environmental Protection Agency reduced its estimate of how much methane is emitted during natural gas production. Second, on June 14, a federal district court judge rejected activists’ efforts to block oil and gas leases on public land based on alleged harm from methane emissions.
The suit brought by Montana Environmental Information Center, Earthworks Oil and Gas Accountability Project, and WildEarth Guardians has put the pursuit of domestic energy on nearly 80,000 acres of land on hold for over two years. Their federal environmental law weapon of choice: the National Environmental Policy Act (NEPA), under which the Bureau of Land Management (BLM) must assess the environmental impact of the oil and gas lease sale. BLM did the assessment, but of course the plaintiffs felt it was inadequate. The groups alleged that BLM “fail[ed] to adequately consider climate change, global warming, and greenhouse gases before it approved the lease sales.”
Plaintiffs challenging government assessments under NEPA must first, of course, prove they have Article III standing to sue. The groups asserted that “the release of methane gas being emitted from the oil and gases leases at issue . . . will cause global warming and climate change, which, in turn, will present a threat of harm to [the environmental groups’] aesthetic and recreational interests in lands near the lease sites by melting glaciers, warming streams and promoting beetle-killed forests.” Continue reading
by G. Wilson (Rocky) Horde III and Hans Clausen, Thompson Hine LLP
Can land-use regulators exact cash from developers to pay for off-site environmental mitigation as a precondition to issuing building permits without triggering the just-compensation requirement of the Takings Clause? Today, the U.S. Supreme Court answered this question in Koontz v. St. Johns River Water Management District. In a 5-4 decision, the Court held that the government’s demand for property, including cash, from developers as a precondition for land-use permits must bear an essential nexus and a rough proportionality with the prospective burden imposed by the development. This holding expands the scope of the Takings Clause, restricts the power of regulators to require the satisfaction of preconditions before permits will issue, and provides important protections to developers.
The case was filed by Coy Koontz, who purchased a 14.9-acre lot in 1972 when no environmental laws prevented development. Florida later enacted numerous environmental statutes to protect wetlands. These laws placed all but 1.4 acres of Koontz’s lot within a protected zone and established a legal presumption that any land use within the zone would be harmful. In 1994, Koontz applied for development permits, seeking to develop only 3.7 acres of his more than 14-acre lot. The St. Johns River Water Management District (District) initially suggested a long list of environmental mitigation options to Koontz, which included reducing his proposed development to only 1 acre or expending his own money to improve 50 acres of wetlands outside his property under a variety of scenarios. Koontz agreed to dedicate the remainder of his land for conservation, but he refused to do anything more. Ultimately, the District denied Koontz’s application solely because he refused to pay for off-site mitigation. Koontz won in a Florida trial court and at the intermediate appellate level, but lost in the Florida Supreme Court. Continue reading
by Taylor Darby, a 2013 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.
In what could be called a second bite at the apple, the Department of Interior has released a revised draft proposal regarding hydraulic fracturing on all public and Indian lands. An initial proposal was released in 2012 but was subsequently withdrawn following criticism from both sides of this debate, including oil and gas associations as well as environmental groups. The proposal flatly states that “[t]he estimated cost range[s] from $12 million to $20 million per year,” while also admitting that the cost variance reflects the “uncertainty about the generalization of costs across all hydraulic fracturing operations.” (43 CFR 3160). Criticisms remain the same with regards to the “uncertain” costs, as well as for the regulation’s purpose and rationale to begin with.
Released on May 16th,the DOI’s new proposal gives the Bureau of Land Management (“BLM”) vast control to ensure “that hydraulic fracturing operations . . . follow certain best practices.” 43 CFR 3160. These “certain best practices” include three objectives aimed to ease “public concern” from the expansion of hydraulic fracturing: (1) public disclosure of chemicals used; (2) wells used meet appropriate construction standards; and (3) requiring operators to have a plan to manage flowback waters. The regulations are “designed to reduce the environmental and health risk that can be posed by hydraulic fracturing operations. . .” 43 CFR 3160. Essentially, this shows that this costly proposal is driven by “public concerns” rather than actual harm and actual risk. Continue reading
by John Andren*
After much noise and debate over genetically-enhanced crops and agribusiness leading up to the arguments in Bowman v. Monsanto, the swiftness with which the Supreme Court delivered its concise, unanimous decision might have left some wondering what all the hype was about. And indeed, it turns out there wasn’t much beyond the noise. The Court didn’t lend much credence to Bowman’s “blame-the-bean” defense, and affirmed its own precedent and the patent exhaustion doctrine as it has been understood for years. Pretty much exactly what WLF and most experienced observers had expected of the case.
It is worth applauding the Court, however, for deciding the case solely on its legal merits instead of turning the case into a referendum on so-called GMOs and the companies which create them, as some activist legal groups had attempted to goad them into doing. Continue reading
Northwest Forest Plan
Cross-posted at WLF’s Forbes.com contributor page
Complying with notice-and-comment and other due process requirements is expensive and time-consuming for federal agencies. Those procedural duties also make agencies accountable to the public and regulated entities. So it’s no surprise that regulators avoid formal rulemaking like the plague. As we’ve spotlighted at The Legal Pulse, agencies instead issue “guidance” documents or utilize even more perversely creative tactics, such as setting new standards by replying to a U.S. Senator’s inquiry letter. Another evasive maneuver which has drawn the ire of not only affected businesses, but also state attorneys general and Members of Congress, is “sue-and-settle.”
Please Sue Us. Special interest groups, especially those with environmental-oriented missions, routinely sue federal agencies to compel actions, especially in situations where the regulators have missed deadlines, or, for political or other reasons, have stopped short of the most rigorous approach. The agencies are presented with an offer they can’t (and often don’t want to) resist: settle the citizen’s suit in a way that implements new mandates (and expands agency authority) without public input.
Judicial Rejection: Conservation Northwest v. Sherman. As noted above, elected officials are expressing their concern with this and seeking remedies (a bit on that below). In the meantime, however, an April 25 U.S. Court of Appeals for the Ninth Circuit decision reflects that judges can and should very closely scrutinize any friendly settlements between federal agencies and activists. In 2007, a throng of environmental groups sued the Bureau of Land Management (BLM) for attempting to eliminate a costly and complex surveying mandate from the management of the Northwest Forest Plan (a land use agreement arising from the 1990s’ spotted owl litigation wars). Continue reading