Environmental Protection

  • 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. 

  • July 25, 2013
    Guest Post

    by Brian Korpics, Law Fellow at the Environmental Law Institute

    For three decades, the Equal Access to Justice Act (EAJA) has enhanced parties’ ability to hold government agencies accountable for their actions and inaction. EAJA allows individuals, small businesses and nonprofits to recover attorney fees from the federal government. Fee awards are available only in cases where plaintiffs prevail and the government cannot demonstrate that its legal position was “substantially justified.”The law is used to vindicate a variety of federal rights, including access to Veterans Affairs and Social Security disability benefits, as well as to secure statutory environmental protections: it promotes public involvement in laws such as the National Environmental Policy Act, Clean Air Act and Clean Water Act. EAJA also helps deter government misconduct and encourages all parties, not just those with resources to hire legal counsel, to assert their rights. The lawhas generally enjoyed bipartisan support since its enactment in 1980.

  • July 8, 2013

    by Jeremy Leaming

    Republican senators bent on shuttering or at least greatly hindering the National Labor Relations Board (NLRB), which is charged with protecting the right of workers to organize, continued their efforts of obstruction by holding up nominees to the five-member board. The Senate minority also sought to delay or scuttle the president’s nominations to the Environmental Protection Agency, Department of Labor and Consumer Financial Protection Bureau.

    Senate Democrats are discussing how best to reform chamber processes to facilitate more progress and action on various nominations. We may learn more following Tuesday’s Senate Democratic Caucus lunch meeting if Majority Leader Harry Reid (D-Nev.) raises the issue there with his colleagues.

    Regarding the NLRB, which Republicans have long maintained is an entity harmful to business interests, Senate Republicans blocked attempts to hold up-or-down votes on the nominations of Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III and Philip A. Miscimarra. Republicans have pointed to an opinion issued earlier this year by the U.S. Court of Appeals for the District of Columbia Circuit that President Obama’s now-expired recess appoints of some nominees were unconstitutional.

    The Republicans argue that until the litigation in the case, NLRB v. Noel Canning, is resolved the labor board should not be permitted to function. The Supreme Court announced in June it would consider the case during its next term. Business lobbyists and their allies in the Senate have looked for all kinds of ways to paralyze or greatly hobble the NLRB, such as refusing to consider to the president’s nominations, which led to the recess appointments.

    After the president sent his package of nominees to the NLRB this spring, ACSblog featured guest blog posts on the struggle over the labor board. They include compelling stories about the work of the NLRB and provide detailed context of the ongoing controversy:

  • June 3, 2013

    by John Schachter

    When I was in eighth grade in 1978, my social studies teacher, Mr. Stoba, asked the class how long does a U.S. senator serve. While he was looking for the more straight-forward answer, “six years,” I had a slightly different view. It being New Jersey, I answered, “It depends on his crime.” But within five years our state had cleaned up its act to a large degree with Bill Bradley and Frank Lautenberg honorably and honestly representing us in the U.S. Senate.

    The death of Senator Frank Lautenberg today has already gotten caught up in the latest political theater. Whom will Republican Gov. Chris Christie appoint as an interim replacement? Might he seriously consider appointing a Democrat (even Cory Booker)? Or will he tack to the far right in an attempt to burnish his credentials with the Tea Party wing of the GOP who have more sway when it comes to the 2016 presidential race?

    But before we fall completely into the political morass of New Jersey politics, let’s pause to pay tribute to this unlikely public servant. I had the good fortune of voting for Lautenberg in 1982, his first time on the ballot and my first time casting a vote in an election, having turned 18 that year. Two summers later I served as an intern for the senator in his Washington D.C. office and got to see up close how this dedicated public servant, who had amassed enough of a personal fortune over the years to not have to work another day in his life, took on entrenched interests and tackled seemingly intractable problems – sometimes with a prickly personality that yielded results if not friends in Congress.

    Frank Lautenberg is responsible more than any other single individual for the ban on smoking on airplanes that most people take for granted today. (Can anyone under the age of 35 even imagine there was a time not that long ago when people could smoke on planes?) The subsequent restrictions on smoking in public places and the stricter labeling restrictions on cigarettes also owe their existence to the dogged efforts of this former smoker.

    Efforts to prevent gun violence – from keeping guns out of the hands of convicted domestic abusers to fighting to eliminate high-capacity ammunition magazines – are the result of Lautenberg’s hard work and dedication. And this New Jerseyan built a strong pro-environment record in a state long plagued by environmental challenges.

    Long before he even entered politics Lautenberg accrued an impressive record of personal achievement. He worked nights and weekends while still a teenager to help support his family following his father’s death from cancer. He enlisted in the Army Signal Corps and served in Europe during World War II then, thanks to the GI Bill, attended and graduated from college before starting a company that earned him millions. Perhaps most proudly, he garnered a spot on Richard Nixon’s enemies list thanks to his fundraising for George McGovern’s 1972 presidential campaign.