Weekly litigation report — January 21, 2017

“Cap and Trade” argument set for Tuesday Supreme Court turns down free speech case The public trust doctrine in Washington State Sea urchin filing School choice victories in Florida! School choice brief filed in Georgia Reply brief in Jaguar case … Continue reading

PLF argues for constitutional limits on California fuel rationing program

Imagine your state limited the number of drivers licenses to less than those already issued, in order to reduce greenhouse emissions (which many argue raise global temperatures). And then, it sold the right to your license at auction to the highest bidder. How … Continue reading

President’s weekly report — April 24, 2015

Tort reform in Washington State — the virtues of at-will employment We filed this amicus brief in Rickman v. Premera Blue Cross in the Washington Supreme Court. While working for Premera, Ericka Rickman was fired for nepotism, because she allegedly favored … Continue reading

Oral argument in PLF’s challenge to EPA’s mobile source greenhouse gas rules held on January 9, 2015

On Friday, January 9, 2015, the D.C. Circuit heard our challenges to the greenhouse gas emissions standards for new trucks and cars.  The challenges were based on EPA’s failure to submit to the Science Advisory Board for peer review the Truck Rule and the separate Car Rule limiting greenhouse gas emissions.  We argued that submittal to the Board is a nondiscretionary statutory mandate applicable to all EPA rules, and that EPA’s failure to comply with the mandate requires the Truck Rule and Car Rule to be remanded and vacated, so that the Agency can reopen the administrative record to seek review from the Board.

The three-judge panel of Tatel, Ginsburg, and Edwards did not concentrate on the substantive issue of whether EPA failed to comply with the statutory requirement.  Rather, they spent the bulk of the hearing asking questions regarding whether the Petitioners had standing to bring the actions.  Standing is a Constitutional requirement, which forbids federal courts from hearing cases unless there is a bona fide controversy between parties to a lawsuit.  The purpose of the standing requirement is to ensure that the courts do not engage in resolving philosophical or abstract questions.

For the purposes of our cases, the standing requirement has three components: (1) the petitioners must be injured-in-fact by the Truck Rule or Car Rule, as the case may be; (2) the injuries must be caused by the rules; and (3) the Court is able to grant relief that will remove or reduce the injuries.  It is difficult to predict how any particular court will decide any pending issue, but the D.C. Circuit panel seemed to side with us on the injury-in-fact and causation issues, concentrating most of their questions on the redressability issue.  It comes down to this: whether vacating and remanding the EPA Truck Rule and Car Rule will help to ameliorate the injuries in light of similar California rules and the federal fuel economy standards promulgated by the National Highway Traffic Safety Administration.  Citing Supreme Court precedent, we argued that the Petitioners’ injuries are redressable because a favorable decision would remove at least one regulatory cause of the injuries.  There is no requirement that all causes of the injury be removed.

If the panel rules in our favor on the standing question, it will be required to address the substantive issue of whether EPA’s violation of the submittal requirement merits remand and vacatur of the two rules.  We expect a decision before the end of the year.

 

PLF files amicus brief asking Supreme Court to hear Low Carbon Fuel Standard case

Yesterday Pacific Legal Foundation filed an amicus brief asking the United States Supreme Court to review a Ninth Circuit decision which upholds a California fuel import restriction against a commerce clause challenge brought by several fuel producers and consumer groups.  We … Continue reading

President’s Report – April 4, 2014

Property Rights – California Coastal Commission We reported last week that the California Court of Appeal issued an adverse decision in SDS Family Trust v. CCC, based on its misunderstanding of the facts related to when the family challenged the … Continue reading

President’s report — December 20, 2013

Obamacare — Origination Clause Challenge We filed this reply brief in Sissel v. Sibelius, our challenge to Obamacare based on the failure of the revenue-raising measure to originate in the House of Representatives, as required by the Constitution’s Origination Clause.  The … Continue reading