• February 11, 2016
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    The U.S. Supreme Court this week issued an order staying implementation of the Clean Power Plan (“CPP”) -- the Obama administration’s signature action to address climate change -- until the courts decide the merits of challenges to the plan brought by industry groups and states.  It’s quite a surprise. The Supreme Court very rarely stays a regulation while it remains before a court of appeals. 

    Granting a stay is not the same as deciding the case, but the order suggests that five justices have serious concerns about the CPP.  I suspect those concerns may boil down to this: The coal industry, likely the primary target of state implementation of the CPP, is too big for EPA to regulate absent an express congressional directive.

    Where would this notion of too big to regulate come from?  The Court has signaled increasing skepticism of agency interpretations of statutes that the justices believe construe agency authority too expansively or in a way that may be of economic significance.  The Court has invoked this mood—even if I can’t quite call it a principle—in at least three recent decisions.

    In Utility Air Regulatory Group v. EPA, the Court held that EPA lacked authority to regulate certain sources of greenhouse gases under a Clean Air Act program because it would involve a “transformative expansion” in the agency’s authority.  In Michigan v. EPA, the Court invalidated another Clean Air Act rule at least in part out of concern for the costs the rule would impose.  And in King v. Burwell, the Court declined to defer to an agency’s interpretation of the Affordable Care Act because the issue was one of “economic and political significance.”  (I have previously discussed this trend here and here.)

    These cases suggest a new rule of administrative law that inhibits big agency actions that tackle big problems. Under such a rule, the CPP may fall because climate change is a global problem with many contributors and EPA is attempting to engage in relatively significant action in response.  In other words, the Court could hold that EPA can only tinker around the edges of climate change unless Congress clearly says otherwise, a holding that would be particularly ironic since the Court’s decision in Massachusetts v. EPA forced the agency to get into the climate change business in the first place. 

  • February 11, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    The condemnation and trolling on social media was swift, strident and predictable.  Beyoncé had created a sensation during the Super Bowl 50 halftime show in the performance of “Formation,” her foray into the fracas involving national law enforcement and social justice activists, commentators, and observers who have sharply interrogated the police narrative in deadly force incidents in which men, women and children of color have been killed by the police. In her performance and the accompanying music video, Beyoncé castigated law enforcement for recent ethical and tactical lapses, from the “McKinney Pool Party” to Ferguson, Katrina, Chicago, and beyond.  That this rebuke was accomplished so artfully, wondrously, and cleverly infuriated certain elements of white America so much so that #BoycottBeyonce necessarily emerged as a Twitter hashtag, as did a call for a protest march on the National Football League Headquarters in New York City.  According to the Washington Examiner: “Members of the National Sheriffs' Association meeting in Washington turned their backs on Beyoncé during a Super Bowl halftime party, angered the NFL allowed her to sing a song they consider anti-police.”           

    Meanwhile, The New York Times reported that Robert Rialmo, a white Chicago police officer who is in his 20s, has filed a $10 million lawsuit against the estate of Quintonio LeGrier, an African American teenaged college student who Rialmo shot and killed on December 26, 2015. Rialmo also shot and killed an innocent bystander, 55 year-old Bettie Jones, while firing at LeGrier. Rialmo claims in his lawsuit that LeGrier’s actions (that quickly led to his death at the hands of Officer Rialmo) caused Rialmo “extreme emotional trauma.” Trauma that in some alternate universe mitigates the fatal trauma inflicted on the person of Quintonio LeGrier with the six rounds fired into his body by Rialmo. Extreme emotional trauma, indeed.            

    Perhaps this novel legal strategy in attenuating the exposure and culpability of police officers in the shooting deaths of African American teenagers might be considered by former Chicago police officer Jason Van Dyke, who shot and killed 17 year-old Laquan McDonald on October 20, 2014. Maybe the 16 shots that Van Dyke fired into McDonald—even firing into his back as he lay lifeless on the pavement—caused Van Dyke similar “extreme emotional trauma.”             

    What we are seeing far too often in the American criminal justice system generally and in law enforcement specifically is the nascent emergence of a “police victimization” mindset in a “War Against Cops” narrative, a fictive construction that too often places the political interests of the police in diametric opposition to the tangible and critical needs of the communities they police in ways that are counterproductive and inimical to achieving community cohesion and safety.              

  • February 11, 2016

    by Nanya Springer 

    The Editorial Board of The New York Times reflects on the U.S. Supreme Court’s unprecedented decision to stay the Clean Power Plan before review by a lower trial court, opining that the move reinforces the commonly-held belief that the Court is “knee-deep in the partisan politics it claims to stand above.”

    In The Nation, Tracey Ross and Danyelle Solomon write that the water contamination crisis in Flint, Mich., is only one incident in a long history of environmental racism in the United States.

    Matt Ford at The Atlantic reports that the U.S. Department of Justice filed a lawsuit Wednesday against Ferguson, Mo., after the Ferguson City Council reneged on settlement that would have substantially reformed the way police operate there.

    At Race and the Law Prof Blog, Neil Gotanda discusses U.S. v. Cruikshank, which he says established a foundational principle that “armed Black resistance will be met with overwhelming military force.”

  • February 10, 2016
    Guest Post

    by Patrick Parenteau, professor of law, Vermont Law School  

    In a move that stunned even the most seasoned court watchers, the conservative majority of the U.S. Supreme Court has blocked the Environmental Protection Agency’s Clean Power Plan, which seeks to reduce carbon pollution from coal-fired power plants. The unsigned order, without any explanation, puts a hold on the rule pending the outcome of proceedings currently underway in the D.C. Circuit, which had earlier denied a stay. Justices Ginsburg, Breyer, Kagan and Sotomayor voted against the stay.

    This action is unprecedented in a number of ways. The majority made none of the findings typically required to obtain a stay. There is no analysis of the merits of any of petitioners’ claims. There is no showing that the rule threatens any immediate harm to petitioners, especially given the long lead times EPA has built into the process. There is no showing that the balance of hardships tips decidedly in favor of the petitioners, especially given the fact that most states are well into the process of developing implementation plans and those that do not want to submit a plan don’t have to. There is no showing that the stay is in the public interest, especially given the warnings from the scientific community that time is fast running out to avoid catastrophic consequences of climate disruption. Never before has the Court interjected itself in a case with such high stakes that hasn’t even been fully briefed and argued before the lower court.

    Some have speculated that the majority may be reacting to what happened last term in Michigan v. EPA (the mercury rule case). By the time the case got to the Court, over two years had passed and 80 percent of the industry had already complied with it. Thus, when the Court found a flaw in EPA’s cost analysis, it was faced with a fait accompli which no doubt irked the conservatives. But it would be a sad comment on the Court’s integrity if the decision to issue a stay was motivated by pique or distrust of the agency.

  • February 10, 2016

    by Jim Thompson

    In an unprecedented move, the Supreme Court on Tuesday temporarily blocked the president’s Clean Power Plan before review by a federal appeals court, report Adam Liptak and Coral Davenport at The New York Times.

    At Time, Benjamin Crump, president of the National Bar Association, calls for the criminal prosecution of Michigan Gov. Rick Snyder (R) and other officials responsible for supplying the city of Flint with contaminated water.

    On Tuesday, the Maryland General Assembly overrode a veto from Gov. Larry Hogan (R) and re-enfranchised over 40,000 formerly-incarcerated individuals, says Zachary Roth at MSNBC.

    In Newsweek, Andrew Hamm discusses new research showing a correlation between the political ideologies of Supreme Court justices and their birth order. According to the study, “a justice who was a first or only child is more likely than other justices to hold conservative political ideologies and is less willing to strike down legislation, even when disagreeing with the law.”