Environmental protection

  • February 26, 2014

    by ACS Staff

    On Mar. 3, the Supreme Court will hear oral argument in a case that will decide whether Freddie Hall should be on death row.  In an op-ed for the Los Angeles Times, Prof. Marc Tasse argues that Florida’s standard for evaluating intellectual disability in death penalty cases is “unscientific and a breach of Hall’s constitutional protection as mandated in Atkins v. Virginia.” For more on Hall v. Florida, please see analysis by Prof. John H. Blume at ACSblog.
     
    Consumers were victorious Monday when the high court rejected an appeal from washing machine manufacturers in a class-action lawsuit. Writing for Slate, Emily Bazelon explains why the decision is “surprising and good news.” 
     
    Republicans are calling for Arizona Gov. Jan Brewer to veto a bill that would allow businesses to discriminate against gay and lesbian customers. ReutersDavid Schwartz reports on growing frustration in the Grand Canyon State.
     
    The Supreme Court heard oral argument this week on the Environmental Protection Agency’s authority to regulate greenhouse gas emissions. Adam Liptak at The New York Times reviews Utility Air Regulatory Group v. EPA.
     
    On the second anniversary of Trayvon Martin’s death, Charles D. Ellison of The Root reflects on Florida’s “Stand Your Ground” law. 
  • February 24, 2014

    by ACS Staff

    Federal District Court Judge William J. Martini dismissed a case against the New York Police Department for “engaging in blanket surveillance” of Arab Muslim communities after September 11, 2001. Adam Serwer of MSNBC exposes why the court’s decision shows that “religious profiling is okay, as long as you have a really good reason.”
     
    Christopher Sprigman of Just Security examines the public relations effort by the National Security Agency’s Director of Compliance John DeLong and the agency’s General Counsel Rajesh De concerning the NSA’s controversial surveillance activities. In the article, Sprigman reveals why these efforts “create the appearance but not the reality of lawfulness.”
     
    Today, the U.S. Supreme Court will hear arguments regarding the regulation of greenhouse gas emissions by the Environmental Protection Agency. Robert Barnes at The Washington Post breaks down Utility Air Regulator Group v. Environmental Protection Agency. For more on this case, please visit the ACSblog.
     
    Writing for the Brennan Center for Justice, Andrew Cohen comments on the lack of media coverage on states’ secrecy laws concerning the types of lethal injections used in executions. Cohen discusses the implications of the media’s inaction.   
     
    At ACLU’s Blog of Rights, Nusrat Choudhury deconstructs Lee Daniels' The Butler and how its depiction of the arduous legal battles of the 1960s Civil Rights movement reminds viewers that “considerable distance remains on the path to true racial equality.”
  • February 24, 2014
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter

    The U.S. Supreme Court will hear argument today in a case addressing EPA’s application of the Clean Air Act to greenhouse gases (“GHGs”). This will mark the third time the Court has dealt with a case related to climate change. Like its predecessors, this case has generated lots of attention, both from regulated parties and the media.

    Despite the attention, one of the most significant features of the case is, perhaps surprisingly, what is not at stake. This case had the potential to call into question the foundations of the Obama Administration’s efforts to address climate change. Before the D.C. Circuit, industry groups and a coalition of states opposed to federal regulation of GHGs, challenged an array of EPA regulatory decisions. These challengers sought to overturn: (1) EPA’s determination that GHGs endanger public health and welfare; (2) EPA’s further determination that GHGs from cars and trucks contribute to the danger; (3) EPA’s regulation of tailpipe emissions of GHGs from cars and trucks; (4) EPA’s reaffirmation of its long-held view that once an air pollutant is regulated, new and modified major stationary sources of that pollutant are regulated under the Prevention of Significant Deterioration Program (“PSD”); and (5) EPA’s decision to phase-in the applicability of PSD and exempt, at least in the short-term, sources that would plainly be covered by the statutory text. The D.C. Circuit ruled in favor of EPA on all counts, and the challengers sought Supreme Court review of all of those issues and also asked the Court to overrule its earlier decision in Massachusetts v. EPA, which held that GHGs are an air pollutant. The Court declined the vast majority of that invitation, deciding instead to consider only the fourth issue described above, whether EPA properly interpreted the statute to automatically trigger regulation under PSD once a pollutant is otherwise regulated.

    The limited grant is important for a couple of reasons. It suggests that the Court has little appetite to revisit the question of whether GHGs are air pollutants. It further indicates that the Court is willing to leave undisturbed, at least for the time being, EPA’s decision that GHGs endanger public health and welfare. Those two determinations underlie virtually any regulatory action under the Clean Air Act, and the Court’s denial of certiorari on those points leaves the agency in a strong position to continue regulating GHGs. Practically speaking, the limited grant means that any decision will have little consequence beyond the PSD Program itself, and that program was never likely to be the centerpiece of an EPA climate strategy under the Clean Air Act. 

    Nonetheless, the Supreme Court’s decision in this case will likely be invested with significant symbolic import. Some conservative commentators, legislators, and advocacy groups have repeatedly accused the Obama Administration of overreaching when it comes to addressing climate change, and a victory for the challengers will fuel that criticism. Progressive and liberal commentators, legislators, and advocacy groups have taken the opposite position and argued that the Administration has ample existing authority to tackle one of the biggest public policy challenges of our time. A victory for EPA will be heralded in those circles as a vindication for the broader climate strategy.

  • February 21, 2014
     
    Arizona lawmakers passed a bill that allows businesses to discriminate against gay and lesbian customers and to deny equal pay to women. GOP lawmakers are fervently defending the legislation, claiming that it protects the religious freedoms outlined in the Religious Freedom Restoration Act. MSNBC’s Adam Serwer reports on the controversial law.
     
    Oregon officials announced that they will no longer uphold the state’s ban on same-sex marriage. Although the fate of the ban has yet to be decided in the courts, the state’s decision remains a significant victory for gay couples in Oregon. Lyle Denniston of SCOTUSBlog has the story.
     
    Environmentalists are engaged in a legal dispute with the Environmental Protection Agency after a North Carolina energy company polluted a nearby river with hazardous coal ash. Rena Steinzor and Michael Patoka of the CPRBlog discuss the need to regulate toxic coal ash and the alleged mishandling by the state’s Office of Information and Regulatory Affairs.
     
    Human Rights Watch explains why a deadly U.S. drone strike on a wedding procession in Yemen may have “violated the laws of war.”
     
    Writing for Balkinization, David Gans responds to Prof. Douglas Laycock’s claim that corporations can exercise religion.
     
    At Womenstake, Stephanie Glover provides an update on women’s enrollment in health insurance plans through the new Health Insurance Marketplaces established by the Affordable Care Act.

     

  • October 2, 2013
    Guest Post

    by Eloise Pasachoff, Associate Professor, Georgetown University Law Center

    Environmental law is safe from legal challenge under the Spending Clause’s new coercion doctrine. That’s the bottom line of Erin Ryan’s new ACS Issue Brief. Professor Ryan, an associate professor at Lewis & Clark Law School, is an expert on environmental and natural resources law and federalism. Her issue brief makes a compelling case that the federal environmental grant programs are not likely vulnerable under the new coercion doctrine that emerged two Terms ago in NFIB v. Sebelius, in which the Supreme Court largely upheld the Affordable Care Act but, significantly, struck down the Act’s expansion of Medicaid as unconstitutionally coercive under the Spending Clause. 

    I agree with Professor Ryan’s analysis and want to make the case that the same is true about federal education law.  In fact, as the second highest source of federal support to the states after Medicaid, federal education law makes a good case study under the new coercion doctrine.  If the federal education laws are likely to succumb to the doctrine’s constraints, then maybe the Court’s Medicaid decision is just the tip of the iceberg, and a lot of federal spending programs are going down.  If, on the other hand, the federal education laws are not likely to be problematic under the new coercion doctrine, then conditional spending in the federal regulatory state is likely to survive relatively unscathed. My work suggests that this second story is more persuasive. 

    As Professor Ryan notes, the NFIB Court’s fractured opinions failed to set forth the terms of the new coercion doctrine with anything like precision, but consensus is emerging that the doctrine has essentially three parts.  (For the plurality, that is; the joint dissent -- in agreement with the plurality that the Medicaid expansion was coercive -- would focus only on the last part.) First, does the condition in question threaten to take away funds for a separate and independent program, or does the condition merely govern the use of the funds? If it just governs the use of funds, then the program is not coercive.

    The second question arises if the condition does threaten funds for an independent program. This question asks whether the states had sufficient notice at the time they accepted funds for the first program that they would also have to comply with the second program. If they did, then the inquiry ends once more with the conclusion that the program is not coercive. 

    The third question arises only if there was no such notice. This question asks whether the amount of funding at stake is so significant that the threat to withdraw it constitutes what the plurality calls “economic dragooning.” Only if this last question is reached and the answer is yes would a program be coercive.