In the last several years, municipal and county governments have thrust themselves into some of the nation’s most contentious legal-policy debates by imposing regulatory mandates and restrictions on business conduct. New York City famously tried to shrink soda serving sizes. San Francisco has dictated that ads for “sugary drinks” include health warnings. Philadelphia has prohibited businesses from asking job applicants about their salary history. And numerous cities and counties have enacted restrictions or bans on oil and natural gas extraction from shale plays within their borders.
That last type of local regulation has instigated many battles between city or county government and state lawmakers. The latest fight—between the State of Colorado and the County of Boulder—is about to come to a head. In a January 26 letter sent to Boulder County’s three commissioners, Colorado Attorney General Cynthia H. Coffman has given the county until Friday, February 10 to rescind its “moratorium” on accepting new applications for oil and gas development. If the county fails to act, Attorney General Coffman has pledged to file suit. Continue reading
*Grace Galvin, a Communications Associate at WLF who received her JD from Charleston School of Law and is pursuing a Master’s in Journalism and Public Affairs at American University, contributed significantly to this post.
“A blessing” is the description Franklin Bess used to convey his feelings toward the oil and natural gas industry, as long as the drilling is American-based. He and his wife, Katie Bess, are the proud owners of The Williamson Ranch in west Texas, land that has been in Katie’s family for five generations.
In an interview with Ezra Levant, a Canadian broadcaster and “ethical oil” advocate, the Bess family expressed relief in April 2015 when an oil-and-gas exploration and production company bought their expiring lease with Tall City Exploration. This sale has provided the income necessary to allow the Bess family to maintain the ranching life—a rarity today—and pass their land on to future generations.
Many ranching families near Big Spring, Texas have similar stories, and they have the Permian Basin shale that lies beneath their town, and the use of such extraction techniques as hydraulic fracturing, to thank for their livelihoods. Unfortunately, environmental activists, with the help of the federal government, have generated a narrative that paints hydraulic fracturing, or “fracking,” as a destructive and offensive process. Continue reading
*Jared McClain, WLF staff attorney, contributed to this post.
On March 31, 2016, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) purporting to bring “clarity, choice, and security” to the broadband industry. In the name of accomplishing those seemingly worthwhile and innocuous goals, the Commission released a 147-page document that details a complex scheme to curtail Internet Service Providers’ (ISPs) right to use the data they lawfully collect on customer behavior. WLF filed comments last week laying out a number of commonsense, statutory, and constitutional arguments against the Proposed Rule in its current form. Continue reading
Forcefully dissenting from the Supreme Court’s denial of certiorari this week in United Student Aid Funds v. Bible, Justice Clarence Thomas repeated his clarion call to overturn Auer/Seminole Rock deference. That doctrine requires reviewing courts to give an agency’s interpretation of its own regulatory rules controlling weight, so long as that interpretation is not “plainly erroneous.”
WLF filed an amicus brief in the case urging certiorari. WLF’s brief, joined by Professor Philip Hamburger of Columbia University Law School, argued that by requiring judges to reflexively defer to the legal interpretations of federal bureaucrats in administrative agencies, Auer asks jurists to abandon their Article III duty of independent judgment. Even worse, we contended, when the agency to which a court must defer under Auer is a party to the litigation, Auer undermines the rule of law by creating a systematic bias in favor of the federal government in violation of due process of law.
Justice Thomas echoed similar concerns in his dissent, criticizing what he viewed as a “metastasized” deference doctrine “on its last gasp”:
More broadly, by deferring to an agency’s litigating position under the guise of Seminole Rock, courts force regulated entities like petitioner here to ‘divine the agency’s interpretations in advance,’ lest they ‘be held liable when the agency announces its interpretations for the first time’ in litigation. Christopher, supra, at ___ (slip op., at 14). By enabling an agency to enact ‘vague rules’ and then to invoke Seminole Rock to ‘do what it pleases’ in later litigation, the agency (with the judicial branch as its co-conspirator) ‘frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.’ Talk America, Inc., supra, at 69 (Scalia, J., concurring).
Over the past few years, Justices Alito and Roberts, as well as the late Justice Scalia, leveled similar criticisms at Auer deference. Here’s hoping that Justice Thomas’s jeremiad does not fall on deaf ears when a ninth justice is ultimately confirmed to the high court.
Last term, in the now-infamous Yates case, the U.S. Supreme Court rejected the Department of Justice’s outrageous contention that an undersized Red Grouper thrown overboard by a commercial fisherman in the Gulf of Mexico was a “record, document, or tangible object” under the “anti-shredding” provision of the Sarbanes-Oxley Act. By so doing, the Court prevented a law passed in the wake of corporate accounting scandals at Enron and WorldCom from becoming an all-purpose hammer for prosecutors. Yates quickly became the poster child for the “overcriminalization” phenomenon.
Unfortunately, it appears that DOJ has not learned its lesson. Although the phrase “tangible object” at issue in Yates was overbroad and ambiguous, in other cases the problem of overcriminalization arises when the government seeks to attribute a new, nonobvious meaning to long-understood, perfectly plain statutory language. Nowhere is that problem better epitomized than in the federal government’s utterly bizarre ongoing criminal prosecution of FedEx, which is slated for trial next month in federal court in San Francisco. Continue reading
Returning to the topic of hydraulic fracturing (see Mark Chenoweth’s May 4 post below), we note the lawsuit that the Natural Resources Defense Council (NRDC) and other environmental activists filed on May 4 against EPA, alleging that the agency simply is not doing enough to regulate fracking. Just two days earlier, the Colorado Supreme Court held that state law preempts efforts by local governments to regulate fracking. Perhaps that outcome dictated the timing of NRDC’s action. Such local ordinances are part of NRDC’s three-pronged approach to attacking this oil and natural-gas extraction method. The coalition of plaintiffs includes Earthworks, which intervened to defend the local ordinance in one of the Colorado cases. Continue reading
Following the Supreme Court’s decision in Mississippi ex rel. Hood v. AU Optronics, state attorneys-general and their trial bar friends have been able to avoid federal court altogether by simply bringing their class and mass actions through the AG’s office as a parens patriae suit. Not only does this clever maneuver treat courtrooms as cash registers and corrode the integrity of the judicial process, but it also constitutes a staggering conflict of interest, as WLF has long argued. Continue reading