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  • April 15, 2015
    Guest Post

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

    Most would agree that the Toxic Substances Control Act (TSCA) is one of our least effective federal environmental laws.  It is a welcome development, then, that Congress has begun seriously to consider legislation to reform this statute.  However, a prominent TSCA reform bill now circulating in Congress – the Frank R. Lautenberg Chemical Safety for the 21st Century Act, sponsored by Tom Udall and David Vitter – may stymie meaningful federal regulation of chemicals while preempting the state laws that have stepped into the breach opened by the failure of TSCA.  This would leave us even worse off than we are today.

    It is common ground among experts in the law of toxic substances control that a major reason for the failure of TSCA is the paralyzing effect of a 1991 federal court decision – Corrosion Proof Fittings v. EPA – invalidating the Environmental Protection Agency’s ban on asbestos.  There, the court piled on stifling analytical requirements as prerequisites for regulatory action on toxic chemicals and applied strikingly strict scrutiny to EPA's evaluation of the costs and benefits of banning asbestos.  So large does this decision loom in the failed history of TSCA that any law aiming to reform TSCA will almost certainly be viewed with close attention to how the law purports to change the features of TSCA that spelled doom for EPA's ban on asbestos in Corrosion Proof Fittings.

    Here is the rub: In two significant respects, the Udall-Vitter bill does not change the features of TSCA that undid EPA’s asbestos ban.  The bill retains the same overall formulation of the safety standard to be achieved (protection against “unreasonable risks”) and the same standard for judicial review (“substantial evidence”) that together brought down the ban on asbestos.  To retain these features of TSCA even though they proved so damaging in the litigation over asbestos is to signal that the Udall-Vitter formula for TSCA reform is not so reformative after all.

    For the safety standard, the Udall-Vitter bill pairs a standard of "no unreasonable risk of harm to health or the environment" with an instruction to EPA not to consider "cost or other nonrisk factors" in determining whether a risk is “unreasonable.”  For many years, courts have interpreted “unreasonable,” when used in health, safety and environmental statutes, to permit a balancing of costs and benefits.  It is thus confusing to pair the term “unreasonable risk” with an injunction not to consider costs and other factors besides risk.  Yet the Udall-Vitter bill does not provide further clarity; it nowhere defines “unreasonable risk.”

    Legal confusion has consequences.  When a statute is ambiguous, courts will defer to an agency's reasonable interpretation of that statute.  The juxtaposition of language signaling a desire for cost-benefit balancing and language signaling a hostility to such balancing may be unclear enough to allow the EPA ultimately to exercise its discretion to choose which approach – cost-benefit balancing or no cost-benefit balancing – to adopt.  Whatever EPA's present inclinations in this regard might be, there is no guarantee they will remain fixed in future administrations.

  • April 14, 2015
    BookTalk
    The Workplace Constitution
    from the New Deal to the New Right
    By: 
    Sophia Z. Lee

    by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School

    “Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court.  Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws.  The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract).  So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?

    The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign.  As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment.  In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.

    The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots.  Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union.  When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position.  In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union.  DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.

    But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime.  Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.  

    In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation.  When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated.  Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits.  The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.

  • April 14, 2015

    by Caroline Cox

    Today is Equal Pay Day, and Catherine Rampell explains in The Washington Post why the fight for equal pay still matters in the United States. 

    In The New York Times, Adam Liptak discusses no major law firms have elected to come out in favor of the case against same-sex marriage. 

    David H. Gans considers the originalist case for same-sex marriage at the Text & History Blog of the Constitutional Accountability Center and argues that the Fourteenth Amendment was written "as a broad guarantee of equality for all."

    At Salon, Heather Digby Parton writes about another less-discussed facet of the Walter Scott tragedy: the overzealous use of Tasers in North Charleston.

    Elizabeth Stoker Bruenig argues in The New Republic that recent comments from Rand Paul on abortion illustrate why both sides need to carefully consider the implications of abortion penalties. 
     

  • April 13, 2015

    by Caroline Cox

     In USA Today, Richard Wolf profiles Jim Obergefell, one of the lead plaintiffs in the same-sex marriage cases before the Supreme Court.

    Chris Johnson, writing for The Washington Blade, reports that a group opposing same-sex marriage has requested that the Supreme Court review the Ninth Circuit’s decision that invalidated Nevada’s ban on same-sex marriage.

    Gabe Roth of MSNBC considers the problems plaguing the Supreme Court and how reforms – such as allowing “broadcast technology” – could increase public confidence.

    In a new edition of Slate’s Amicus podcast, Dahlia Lithwick discusses how the Supreme Court came to take up the issue of  same-sex marriage and what to expect from the cases.

    The National Resources Defense Council announces a nationwide event to discuss clean energy and how it can help the most vulnerable in the United States.

  • April 10, 2015

    by Caroline Cox

    Judicial vacancy numbers continue to rise, but there is little movement in the Senate to address the problem. A recent report from the Alliance for Justice shows how “the Republican Senate’s failure to fulfill its constitutional duty extends beyond the languishing attorney general nomination.”

    The announcement that Sen. Harry Reid (D-Nev) will not seek reelection has prompted many commentators to reflect on his record and his role in filibuster reform. At The Hill, Juan Williams considers how Reid helped the judicial nomination process during his tenure.

    As Senate Republicans delay the nominations process, it’s becoming clear how important federal courts are to major public policy decisions. At The New Yorker, Jeffrey Toobin considers how the courts have challenged much of President Obama’s policy agenda.

    There are currently 55 vacancies, and 23 are now considered judicial emergencies. There are 16 pending nominees. For more information see judicialnominations.org.