ACSBlog

  • June 29, 2015
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:

    1. We do not yet know what happens to EPA's rule while EPA does the analytical work the Court has required of it. The Supreme Court reversed the judgment of the D.C. Circuit and remanded the case for further proceedings consistent with its opinion. The case will go back to the D.C. Circuit for it to figure out how to address the Supreme Court's ruling. Certainly the case will eventually have to return to EPA; the D.C. Circuit itself will not attempt to undertake the consideration of costs the Supreme Court has ordered. But what happens between the time the case goes back to EPA and the time EPA makes a decision in light of the Supreme Court's ruling? That depends on the D.C. Circuit. The court will need to decide whether to remand or to vacate and remand; that is, whether to simply send the matter back to EPA while leaving the rule in place, or undo the rule in the interim. The D.C. Circuit has lately remanded quite a few agency rules, especially environmental rules, without vacating them. Given the amount of discretion left to the agency by the Supreme Court's decision (see below), and the fact that EPA has previously stated that the rule is justified even in light of its costs, I believe there is a strong case for remand without vacatur.

    2. We do not yet know how EPA will or should take costs into account in revisiting the issue of whether to regulate power plants under section 112. The Court left this matter to EPA, with the qualification that the agency's treatment of costs must be, "[a]s always, within the limits of reasonable interpretation." The Court emphasized that it was not holding that the agency must conduct "a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value." Beyond that, the Court gave little hint of the kind of analysis it would approve. At times, it seemed to be looking for a judgment about whether costs were disproportionate to benefits; at other points, it seemed to highlight cost-effectiveness analysis. These are different inquiries, and it will now be up to EPA – at least in the first instance – to decide which of several cost-sensitive frameworks to use. My sense from the Court's opinion is that as long as EPA considers costs in some fashion, whether through formal cost-benefit analysis or something far more qualitative, it will be sufficient.

    3. We do not yet know which benefits EPA may consider for purposes of the additional analysis the Court has required. Although EPA conducted a formal cost-benefit analysis of the rule for purposes of White House regulatory review, and that analysis included billions of dollars in "ancillary" benefits due to reductions in air pollutants not covered by the air toxics program, the Court did not decide whether these ancillary benefits may be included in the analysis yet to come. That is, the Court said, "a point we need not address." Several justices seemed skeptical of these benefits at oral argument, and there is some (small but discernible) textual basis for excluding them. A number of commentators have argued that EPA must be able to consider such benefits because they are included in standard economic practice and because an OMB circular on cost-benefit analysis, dating from the George W. Bush administration, admits them in the cost-benefit framework. I don't think economic practice and an OMB circular will decide this question, but I do think it would be quite aggressive for a court to tell EPA which regulatory benefits count.

  • June 29, 2015

    by Caroline Cox

    At The New York Times, Adam Liptak reports that the Supreme Court has ruled the use of sedative midazolam in executions does not violate the Eighth Amendment.

    Robert Barnes reports for The Washington Post that the Supreme Court ruled 5-4 that independent commissions may draw electoral district lines.

    Mary L. Bonauto, member of the Board of Advisors of the ACS Boston Lawyer Chapter, explains the decades-long fight for marriage equality in The Boston Globe.

    At The Huffington Post, Geoffrey R. Stone considers the dissenters in the same-sex marriage decision and asserts that “the justices in the majority did precisely what the Constitution expects them to do.”

    Judge Richard Posner discusses at Slate two of the dissents in the Obergefell opinion, arguing that the Chief Justice’s dissent in particular reads as heartless.

    Andrew Koppelman argues at The New Republic that Chief Justice John Roberts’s previous calls for judicial restraint cannot be taken as sincere. 

  • June 26, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Supreme Court’s decision upholding a right to marriage equality for gays and lesbians surprised no one, but that makes the victory for liberty and equality no less important. Two years ago, the Supreme Court, in United States v. Windsor, declared unconstitutional a key provision of the federal Defense of Marriage Act. Justice Kennedy wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court held that there was no legitimate purpose served by the federal government refusing to recognize same sex marriages.

    Virtually every lower court, except for the United States Court of Appeals for the Sixth Circuit, interpreted Windsor as providing a basis for invalidating laws prohibiting same sex marriage. As a result, as the Supreme Court considered the issue, marriage equality existed in 37 states and the District of Columbia. The issue before the Court was less about whether to extend marriage equality and more about whether the Court would take it away from all of the states where it existed by virtue of Court decisions.

    Ultimately, the Supreme Court’s decision reflects that there is no legitimate government purpose served by denying gays and lesbians of the right to marry. A history of discrimination never is enough to justify current discrimination. The argument based on procreation was silly.  Gay and lesbian couples will procreate – by adoption, surrogacy, and artificial insemination – whether they can marry or not. Their children should be able to benefit from marriage, the same as children of heterosexual couples.

    The Court’s decision will be regarded as a historic landmark for advancing equality and liberty. It is the Court playing exactly the role that it should in society:  protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental.

  • June 26, 2015
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    The Supreme Court's decision in King v. Burwell is, of course, most important for its central holding that the Affordable Care Act's federal subsidies are available even on federally established health exchanges. The decision preserves health insurance subsidies for millions of people who have begun to benefit from them and avoids the ridiculous spectacle of taking the subsidies away based on four words ("established by the State") in a lengthy and complicated statute.

    But for those who, like me, are not health care experts but teach and write in environmental law, the majority opinion by Chief Justice Roberts is principally worth studying for its approach to statutory interpretation. Especially for those following EPA's impending regulation of greenhouse gases from power plants under section 111 of the Clean Air Act, which has already drawn attacks based on a purported lack of statutory authority, the Court's opinion in King v. Burwell strikes some familiar (and possibly unpleasing) chords.

    First, the Court in King v. Burwell declined to apply the two-step Chevron framework. The Court did not say the Affordable Care Act is clear, and therefore Chevron deference doesn't apply. It did not say the Affordable Care Act is not clear, and therefore Chevron deference applies if the agency's interpretation is reasonable. These would have been the two standard moves for the Court to make. Instead, the Court simply held Chevron inapplicable. Granted, the Court did not – as the Reporter's headnote did – come out and baldly say "Chevron does not provide the appropriate framework here" (slip op. at 2). And granted, the Court pitched its language on Chevron in terms of "reason to hesitate" rather than outright rejection. But after explaining why this was an "extraordinary case" in which the Court has "reason to hesitate," the Court moved into its very own interpretation of the statutory provision at issue. The Court read the statute straight up, as it were, with no deference, or even subsequent reference, to the agency's thoughts on the matter.

  • June 26, 2015

    by Caroline Cox

    Robert Schapiro, member of the Board of Advisors for the ACS Georgia Lawyer Chapter, writes in The Washington Post that Justice Scalia's vision of making the Supreme Court a conservative stronghold is over.

    Bill Chappell reports for NPR on the Supreme Court’s ruling this morning that same-sex couples have the legal right to marry in all 50 states.

    ACS Board Member Linda Greenhouse writes at The New York Times about the ruling in King v. Burwell, arguing that the “whole exercise was unnecessary, the outcome too close for comfort” but worthy of celebration.

    Garrett Epps considers at The Atlantic how the Supreme Court narrowly saved the Fair Housing Act and disparate-impact claims.

    At Slate, Lisa Larson-Walker provides photos of the celebration of the Supreme Court’s same-sex marriage decision outside of the Supreme Court.