Appeals Court Properly Rejects Activists’ Effort to Impede Domestic Energy Development

The scope of environmental “cumulative impact” extends only so far.  So said the U.S. Court of Appeals for the Second Circuit in its recent decision of Coalition for Responsible Growth and Resource Conservation v. U.S. Federal Energy Regulatory Commission (FERC).   The ruling is an important victory for the country’s energy sector because it clarifies that energy companies will not be held to unreasonable terms under the National Environmental Policy Act (NEPA).

The case arises from a petition filed by Earthjustice and other environmental organizations challenging an order issued by FERC allowing the Central New York Oil And Gas Company to build a natural gas pipeline in north central Pennsylvania.  Robert J. Alessi and Jeffrey D. Kuhn of DLA Piper have written a very thorough background of the case here, so I’ll just mention a few of the more important details.  Continue reading “Appeals Court Properly Rejects Activists’ Effort to Impede Domestic Energy Development”

NYC Mayor Will Eat Away Our Freedoms with Beverage Ban

Trans-fats – we were told by New York City Mayor Bloomberg – are an exceptional case because even the smallest intake hurts the human body. Ditto, it would seem, of salt and alcohol. But we all knew he wouldn’t stop there.

And he didn’t. The New York Times reported yesterday that Mayor Bloomberg now has fixed his paternalistic gaze on “Big Soda”: 

New York City plans to enact a far-reaching ban on the sale of large sodas and other sugary drinks at restaurants, movie theaters and street carts, in the most ambitious effort yet by the Bloomberg administration to combat rising obesity. 

The proposed ban would affect virtually the entire menu of popular sugary drinks found in delis, fast-food franchises and even sports arenas, from energy drinks to pre-sweetened iced teas. The sale of any cup or bottle of sweetened drink larger than 16 fluid ounces — about the size of a medium coffee, and smaller than a common soda bottle — would be prohibited under the first-in-the-nation plan, which could take effect as soon as next March.”

Here are some initial problems we see with the proposal: 

Slippery Slope!

As implied above, the mayor is on the fast track down a slippery slope. How many more “exceptional” products are there going to be? Will French fries be next? Cupcakes of a certain size?   Continue reading “NYC Mayor Will Eat Away Our Freedoms with Beverage Ban”

Lawsuits by the Foot: Food Marketing Class Actions Survive

Recent lawsuits filed against food companies for deceptive advertising have embraced the “spaghetti on the wall” approach:  just make enough accusations and eventually one of them will stick.  This approach fills courts with frivolous claims that waste society’s time and money.  To reverse this trend, judges must embrace the heightened pleading standards set forth by Twombly and Iqbal and unabashedly, and quickly, dismiss complaints that are facially implausible.

The Northern District of California seems to now be the hot pocket for food advertising lawsuits.  Consider two recent lawsuits in that district.  In the first, on May 11, Judge Samuel Conti examined a motion to dismiss in Lam v. General Mills, Inc., (Case No. 11-5056), in which plaintiff Annie Lam complained that General Mills had (deep breath):

  • Tricked consumers into thinking its fruit roll-up snacks are healthful
  • Improperly labeled its snack “gluten free”
  • Improperly labeled its snack “fruit flavored snacks,”
  • Improperly labeled its snack “naturally flavored”
  • Improperly said its snack was made “with real fruit.”

Continue reading “Lawsuits by the Foot: Food Marketing Class Actions Survive”

Update: Suit Filed to Challenge EPA Mandate of Unavailable Gas Additive

In January, I authored a Legal Pulse post after reading a New York Times on EPA’s absurd fines levied against energy companies for failing to use a special biofuel that simply doesn’t yet exist.  Here’s the facts again:

*The 2007 Energy Independence and Security Act requires the use of cellulose.

*“Cellulosic fuel is commercially unavailable.” (NYTimes)

*“Companies that supply motor fuel … will pay about $6.8 million [in 2011] in penalties to the Treasury” for failing to use the mandated amount of cellulose.  (NYTimes)

This critique is especially damning considering the kid-gloves treatment EPA usually gets from The Times.

Many groups and organizations – including WLF – expressed outrage at the time of the article, but the American Petroleum Institute (API) recently translated this outrage into action On March 12, API filed a petition with the U.S. Court of Appeals for the D.C. Circuit to review the EPA requirement.  API’s Bob Greco called EPA’s requirement an “unrealistic mandate” and said “EPA must set the requirement at a realistic volume but they have not.  This is regulatory absurdity.”  API’s blog post on the subject can be seen here.

We at WLF are bothered by any instance of overregulation, but we think excessive and irrational regulation of the energy industry, at current times, is especially offensive.   Gas prices are almost $4 a gallon.  According to March 7 poll taken by, 63 percent responded “yes” to “Have recent price increases in gasoline caused any financial hardship for you or others in your household?”

And yet, the EPA considers it proper to absurdly regulate and penalize the very companies that supply our energy.  Don’t they understand that we all end up paying for their zeal?

Vermont Proposes a Non-Solution to “All-Natural” Class Action Lawsuits

In our February 8 post, Courts Not a “Natural” at Regulating Food Ads and Labels, I argued that legislatures, or regulatory bodies acting as an “agents” of the legislature, are far better suited to define politicized, complex terms like “natural” than are judges and juries through class action litigation. The context of this argument: class action lawsuits against Frito-Lay claiming that consumers relied upon the misleading use of “all-natural” on the product packages. The term is misleading, the suit asserts, because flour and oils used to make the snacks had their origins in genetically modified seeds.

The good people of Vermont, it seems, through their legislature, have taken this message to heart (though I’m sure they were well along in the drafting process before The Legal Pulse put in its two cents). The state legislature is currently considering a proposal which would require food producers to disclose on the food label the existence of a genetically modified organism (GMO) in any ingredient in the product. More germane to our February 8 post, the bill also would prohibit food producers from dubbing any product created with GMOs as “natural.” Continue reading “Vermont Proposes a Non-Solution to “All-Natural” Class Action Lawsuits”

Courts Not a “Natural” at Regulating Food Ads and Labels

In AEP v. Connecticut, the U.S. Supreme Court unanimously declared that questions of a political nature are best decided by the democratic legislative process, not by litigation through the courts.

Unfortunately, the AEP message did not get to everyone. Plaintiffs in recently launched lawsuits against Frito-Lay are asking the judiciary to clarify a term which has become quite politicized: “natural.” And by bringing the suits as class actions, the lawyers are looking to enrich themselves at the expense of Frito-Lay – the potential victim of a currently undefined, and highly disputed, term.

The suits in California and New York allege that Frito-Lay unfairly promoted Tostitos and SunChips as “all-natural” when, according to the plaintiffs, the products contain corn and vegetable oils from genetically modified plants.  (Reuters)  The complaint filed in Eastern District of New York by a plaintiff (ironically) named Shake, notes, “The reasonable consumer assumes that GMOs [genetically modified organisms] are not ‘all natural.’  Thus, Tostitos’ and SunChips’ advertising is deceptive to consumers.”  Continue reading “Courts Not a “Natural” at Regulating Food Ads and Labels”

Fail to Use Non-Existent Biofuel, Earn Fine: A Snapshot of Government Incomptence

At Washington Legal Foundation (WLF), we routinely make constitutional objections to government’s interference in the private market place.  For example, in the coming weeks we’ll file an amicus brief in Florida v. HHS that will argue the Constitution prevents the government from forcing Americans to purchase a product they don’t want.  Similarly, on January 13, we published a paper by Charles M. English that questions the constitutionality of government-mandated speech.

But we’re also bothered by government regulation and market interference simply because the government is too frequently incompetent.  As we noted in an “In All Fairness” advertorial feature we published in the March 30, 2009 edition of The New York Times:

The same government which has given us abysmal veterans’ medical care, a disgraceful Hurricane Katrina response, an estimated 13 million illegal aliens, and the Postal Service now wants to fix our health care system.  Can the American patient really trust government bureaucracy with such complex surgery?”

If your response is anything other than a definite “No,” then take a look at this recent EPA action:

As reported by the The New York Times on January 9, 2012, “When the companies that supply motor fuels close the books on 2011, they will pay about $6.8 million in penalties to the Treasury because they failed to mix a special type of biofuel into their gasoline and diesel as required by law.”  The only problem, as the article notes in the next paragraph, is that the required biofuel doesn’t exist – it simply hasn’t been produced.  (“A Fine for Not Using Biofuel That Doesn’t Exist”) Continue reading “Fail to Use Non-Existent Biofuel, Earn Fine: A Snapshot of Government Incomptence”