Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP
In late August, the United States District Court for the Central District of Illinois held that the owner and operator of a coal-fired power plant was liable for violations of the Clean Air Act (CAA) related to particulate matter emissions. See National Resources Defense Council et al. v. Illinois Power Resources, et al. While the decision ultimately reached and decided the merits of the CAA violations largely in Plaintiffs’ favor, the case is also notable for its discussion of whether Plaintiffs—the Natural Resource Defense Council, Respiratory Health Association, and Sierra Club—have standing to sue under the CAA’s citizen-suit provision, 42 U.S.C. § 7604. The court held that they do, and specifically that all that was required to establish injury was an “identifiable trifle.” Defendants in environmental citizen suits will have an increasingly difficult time challenging plaintiffs’ standing if more judges embrace this court’s exceedingly low standard for what constitutes a “case or controversy.” Continue reading
Because “public-interest” groups cloak themselves with the feel-good mantle of protecting consumers, the environment, animals, etc., the motives of such groups rarely get questioned. But several recent developments show that all too often, activists put their own self-interest before the public’s interest.
Consider, for example, environmental groups’ opposition to a Washington state ballot measure going before voters this fall. Initiative 732 pursues a major environmentalist goal—carbon-emissions reduction—by imposing an excise tax. Revenues from the carbon tax would in turn fund sales, manufacturing, and low-income-household tax cuts. In other words, it’s revenue neutral, and that doesn’t sit well with green activists who see climate change as an effective proxy for a broader ideological goal: expanding government. Continue reading
Featured Expert Contributor — Corporate Governance/Securities Law
Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law
*Editor’s Note: Washington Legal Foundation is pleased to have Professor Bainbridge joining our roster of WLF Legal Pulse Featured Expert Contributors. Professor Bainbridge is a member of WLF’s Legal Policy Advisory Board. He is a prolific scholar, whose work covers a variety of subjects, but with a strong emphasis on the law and economics of public corporations. He also authors ProfessorBainbridge.com, which over the last ten years has consistently earned ABA Top 100 law blog honors.
An August 15, 2016 Wall Street Journal opinion piece critiqued the Securities and Exchange Commission’s (SEC) plan to require that public companies, in the words of SEC Chairman Mary Jo White, “include in their proxy statements more meaningful board diversity disclosures on their board members and nominees.”
This sort of disclosure, as Chairman White remarked when discussing another potential SEC disclosure mandate, is “directed at exerting societal pressure on companies to change behavior, rather than to disclose financial information.” So what she’s proposing now with regards to board diversity is known as therapeutic disclosure. Continue reading
By Trey Wassdorf, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.
At the behest of special-interest activists and government regulators, federal courts continue to broaden the scope of the Endangered Species Act (ESA), often in ways that do little to actually preserve plants and animals. The latest expansive ruling comes from the US Court of Appeals for the Fifth Circuit. In Markle Interests, L.L.C. v. United States Fish and Wildlife Service, the court upheld the designation of 1,544 acres of private land in Louisiana as “critical habitat” for the dusky gopher frog, Rana sevosa, even though it does not reside on the land and the land does not currently feature the characteristics needed to support the frog. Continue reading
Lesser Prairie Chicken
On July 20, 2016, ten months after a U.S. District Court for the Western District of Texas judge ruled that federal regulators erred in finding the lesser prairie chicken “threatened” under the Endangered Species Act (ESA), the US Fish & Wildlife Service (FWS) finalized its delisting decision. The decision not only validates the work of a public-private bird-conservation partnership, it will also test the viability of such state-based efforts. Continue reading
Featured Expert Column − Toxic Tort and Environmental Litigation
Richard O. Faulk, Esq., a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.
*The views and opinions expressed in this article are those of the author and do necessarily represent or reflect the views of Alexander Dubose Jefferson & Townsend LLP.
Since the United States Supreme Court’s Skidmore v. Swift & Co., and Bowles v. Seminole Rock & Sand Co. rulings, the role of judicial deference in administrative law has expanded exponentially. For example, agencies now receive deference, under the Court’s Auer v. Robins decision, even if their own drafting creates the very vagaries and ambiguities that require interpretation. Courts also defer to agencies’ interpretations of statutes they are charged to administer (Chevron U.S.A. Inc. v. NRDC) and to scientific conclusions reached in the course of the regulatory process (Baltimore Gas & Electric Co. v. NRDC). By indulging these perspectives, the courts necessarily surrender their constitutional authority to “say what the law is,”1 and contribute to an arrogation of administrative power that threatens not only our constitutional separation of powers, but also their balance.2
Regulatory agencies have grown into what some call a “fourth branch” of our federal government.3 The threat posed by this de facto branch, also known as the “Administrative State”4 or, more colorfully, our “Junior Varsity Congress,”5 has attracted the growing attention of a number of Supreme Court justices. Continue reading
Former Securities and Exchange Commission (SEC) Commissioner Daniel Gallagher, co-author of a 2015 WLF Working Paper, “Shareholder Proposals: An Exit Strategy for SEC,” testified before a subcommittee of the House Committee on Financial Services on May 17. The hearing was entitled, “Legislative Proposals to Enhance Capital Formation, Transparency, and Regulatory Accountability.”
Mr. Gallagher’s written testimony referenced the January 10, 2014 comments WLF filed with SEC criticizing the current proxy voting regime. Echoing his arguments in the 2015 WLF Working Paper, Mr. Gallagher urged the Committee to move beyond attempting to reform federal regulation of the proxy voting process and instead leave such oversight to the states. He wrote, “These proposals are meant to approximate the increasingly antiquated notion of an in-person annual shareholder meeting. It’s like listening to a cassette recording of a Victrola, while everyone else is on their iPhones.” He wryly added in a footnote to that statement, “I will now wait for the hipsters of the corporate governance community to tell me that my analogy is wrong because the analog nature of the record and cassette recordings makes them preferable to the digital content on an iPhone.”