Weekly litigation update — May 6, 2017

Intervention filed in Congressional Review Act case

As has been widely reported elsewhere, Congress and the Administration have dusted off the Congressional Review Act and have set about rescinding a series of Obama-era regulations. You can read more about that on our CRA-themed website, RedTapeRollback.com. Much credit for this recent effort goes to PLF attorney Todd Gaziano, who helped draft the law when he was a congressional staffer.

Very recently, the Center for Biological Diversity sued in Center for Biological Diversity v. Zinke.  Among other things, CBD argues that regulations cannot be rescinded by Congress unless it also rewrites the underlying legislation. Thus a regulation pertaining to clean air could not be rescinded unless the Clean Air Act were amended. CBD also suggests that the CRA unconstitutionally changes Senate procedure by allowing for regulations to be rescinded by a majority vote. And, with respect to the particular regulations at issue here — a regulation pertaining to predator control in Alaskan wildlife refuges — CBD claims that the Act was improperly utilized. Continue reading

PLF challenges Coastal Commission’s restriction on the right to use property.

Dr. Mark Greene and Bella Greene

When Mark and Bella Greene bought a modest home on the beach in Los Angeles 11 years ago, they dreamed of moving from Pennsylvania to enjoy the sun in retirement near their grandchildren. But the California Coastal Commission turned that dream into a nightmare, forcing them to spend tens of thousands of dollars in a year-long bureaucratic battle over a permit to update and expand the house.

In the end, the Commission approved a permit but only on the condition that they forgo plans for the addition; as an added insult, the Commission demanded they waive their rights to ever protect the beach-front home from storms or erosion with a seawall. These conditions exceed the Commission’s power under the Coastal Act and U.S. and California Constitutions.

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Pacific Legal Foundation Intervenes in Lawsuit Challenging Use of the Congressional Review Act

As every school-child knows, the U.S. Government is divided into three branches: Legislative, Executive, and Judicial. Article I of the Constitution vests “[a]ll legislative Powers [t]herein granted” in Congress. And while Congress has delegated rule-making or quasi-lawmaking authority to executive agencies,* Congress ultimately retains all legislative power. Therefore, any power delegated to the executive by Congress can later be restricted or withdrawn.

Not so, according to a new lawsuit filed by the Center for Biological Diversity, which makes the extraordinary claim that a duly enacted law invalidating an executive-agency rule amounts to Congressional invasion of executive-branch authority. In other words, CBD claims that it is unconstitutional for Congress to pass laws. Under CBD’s tortuous theory, once Congress delegates rule-making authority to an executive agency, Congress relinquishes all oversight unless and until it expressly amends the statute that originally granted such authority. Otherwise, CBD contends, Congress unduly interferes with the role of the executive branch. This argument turns the Separation of Powers doctrine on its head.

To defend Congress’s proper role as the first branch of government and the vested repository of all legislative power, Pacific Legal Foundation today moved to intervene in CBD’s lawsuit on behalf of itself and its clients Kurt Whitehead, Joe Letarte, the Alaska Outdoor Council, and Big Game Forever. PLF has filed a motion to dismiss to throw out CBD’s baseless lawsuit.

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Oral Argument in Lynch v. California Coastal Commission

PLF Attorney John Groen with clients Jennifer Lynch and Marian Frick.

Today, PLF attorney John Groen argued our seawall condition case, Lynch v. California Coastal Commission, in front of the California Supreme Court.

The CA Supreme Court keeps an archive of oral argument webcasts, which will be available at this location.

Both sides were given tough questions by the justices, and it is always impossible to know exactly where the court stands, but the clear focus of the oral arguments was the threshold issue of whether or not the homeowners “waived” their right to judicial review of their seawall permit when they began construction.

Read more about the oral arguments

Legislating through friend of the court briefs

As many Pacific Legal Foundation employees have written about before, the power of administrative agencies has increased greatly over the last century. Many Americans are now subject to rules adopted not by elected officials, but by unelected bureaucrats in the “fourth branch of government.” Even worse, it is common practice for courts to defer to agencies’ interpretations of the law, even though it is the judiciary that has the constitutional power to interpret laws.

This acquiescence to agencies once again reared its ugly head in a recent case out of the Third Circuit, E.I. DuPont De Nemours and Company v. Bobbi-Jo Smiley. At issue is the interpretation of the Fair Labor Standards Act. DuPont pays its employees for the breaks they take during the shift. However, DuPont does not pay employees for the time they spend before and after their shifts donning and doffing their uniforms and briefing the new shift about the work they just completed.

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PLF in the California Supreme Court Thursday Morning

Our seawall condition case, Lynch v. California Coastal Commission, will be argued tomorrow morning, May 4, 2017, in front of the California Supreme Court at 9:00 AM PST.

There is a live stream available starting at 9am by clicking the “View Live” button on the Court’s homepage, and afterwards the argument will be also be archived here.

Read more about Barbara Lynch

Weekly litigation report — April 29, 2017

  • Supreme Court requests further briefing in affordable housing case
  • Victory in Anaheim parent-trigger case
  • Brief opposing EPA regulatory overkill
  • Senate hearing addresses PLF wetlands case
  • Wolf Releases Revived

Supreme Court requests further briefing in affordable housing case

At least some of the justices at the Supreme Court are interested enough in our challenge to West Hollywood’s affordable housing mandate (aka “inclusionary zoning” exaction) to ask the City to file a brief. This is the case, 616 Croft Avenue v. City of West Hollywood, where the City is demanding a couple to pay $540,000 in exchange for a permit to replace two homes with an 11-unit condominium project. Because building a net of nine new housing units should serve to increase supply, we think the City’s demand has nothing to do remedying any impacts caused by the development and everything to do with the city’s attempt to treat development permits like ATM machines. We received quite a bit of amicus support and are heartened that the Court has taken enough interest to ask for more briefing. For more, see our blog post here.

Victory in Anaheim parent-trigger case Continue reading

Concerns over Duarte case remain for US Senators

On Wednesday of this week, the Senate Committee on Environment and Public Works held a hearing on the legal and technical flaws in the Obama Administration’s 2015 WOTUS definition.* During the hearing, Sen. Ernst (R – IA) asked panelist and Wisconsin Solicitor General Misha Tseytlin about the Duarte Nursery case. Tseytlin agreed that he was familiar with the case, and that a farmer being prosecuted under the Clean Water Act merely for plowing a field was a large reason that both the Wisconsin and American Farm Bureaus oppose the 2015 WOTUS definition. Senator Ernst focused on the Army Corps’ absurd argument that plowing causes “mini mountain ranges” and quipped that under that view, Iowa may be the most mountainous stated in the Union. You can watch Senator Ernst’s exchange with the panelists here:

*”Waters of the United States.” The 2015 regulation expanding this definition to vast areas of dry land, including farm land, is currently stayed by the Sixth Circuit of appeal in litigation brought by Pacific Legal Foundation and others.

Victory in Anaheim parent trigger law case

A little over a year ago we wrote about a maddening case in Anaheim, California. In 2015, a group of elementary school parents sought to take advantage of California’s Parent Empowerment Act (the “parent trigger”) to force the Anaheim City School District to convert their children’s continually failing school into an independently operated charter school. After the parents gathered the necessary signatures for a petition and submitted the documents to the school district, the district claimed that the law didn’t apply that year due to a temporary one-year waiver that California schools had received from reporting the relevant performance (or lack thereof) measures to the federal Department of Education. In other words, according to the school, it was only a failing school (and subject to the parent trigger) if it reported it was a failing school, so if it didn’t have to report it was a failure for one year, then it must not have been. Continue reading

Supreme Court directs West Hollywood to respond to PLF’s legislative exactions challenge

Earlier this week, the U.S. Supreme Court ordered the City of West Hollywood to respond to PLF’s certiorari petition in the legislative exactions case, 616 Croft Ave, LLC v. City of West Hollywood.

As you may recall, the 616 Croft Ave. petition asks the U.S. Supreme Court to review a California Court of Appeal decision holding that a city or county can enact regulations forcing landowners to dedicate private property to public use as a permit condition, without providing just compensation, so long as the government can show that its use of the land will enhance the public welfare.  That decision marks a stunning departure from the U.S. Supreme Court precedents Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), and Koontz v. St. Johns River Water Management District (2013), which hold that permit conditions seeking a dedication of property to the public must be sufficiently related to the proposed development (such as mitigating for traffic or storm water impacts). Without this essential connection, the condition will violate the Takings Clause and be invalid. Continue reading