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  Among other things, CBD argues that regulations cannot be rescinded by Congress unless it also rewrites the underlying legislation. Thus a regulation pertaining to clean air could not be rescinded unless the Clean Air Act were amended. CBD also suggests that the CRA unconstitutionally changes Senate procedure by allowing for regulations to be rescinded by a majority vote.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.

We have now moved to intervene on behalf of ourselves and a number of Alaskan sportsmen. Our Motion to Dismiss suggests that all of these claims are unfounded. Moreover, they are not even justiciable in court. Federal courts do not have authority to rule on the internal rules of Congress (i.e. whether or not to keep a filibuster rule.) And the CRA itself precludes litigation to challenge rescissions of rules. We think that a bill to rescind a regulation brought pursuant to the CRA, that passes both houses of Congress with a majority vote, and which is singed by the President, is quite constitutional. For more, see our blog post here.

“Unfriendly” regulation

We filed this amicus brief in E.I DuPont De Nemours and Co. v. Bobbi-Jo Smiley at the Supreme Court of the United States. As the administrative state grows ever larger, some bureaucrats are creating new regulatory doctrines not through formal rule making with its public notice and comment mandates. Instead, agencies are creating new rules and regulations through friend-of-the-court, aka amicus, briefs. Thus, if an agency wants to embark on a new interpretation of a statute or rule, it just plops that new interpretation into the middle of amicus brief and henceforth calls it binding agency policy. Not only is that a violation of the Administrative Procedures Act, it is also a violation of the constitutional doctrine of separation of powers. The particular regulation at issue here dealt with whether time spent taking on and off uniforms had to be compensated as opposed to being offset by time being paid for lunch and other breaks — when there is no requirement to pay for a lunch break. But this case is more important than that single issue — it matters because the Court has a chance to return rule making to the procedure mandated by law. For more on this, see our blog post here.

Oral argument in Lynch v. California Coastal Commission

PLF attorney and General Counsel John Groen presented oral argument to the California Supreme Court in Lynch v. California Coastal Commission. This is the case where the Coastal Commission is demanding that in exchange for permits to repair a storm-damaged seawall and staircase to the beach, the homeowners agree to dedicate the stairway to the public and put a 20-year expiration date on the seawall. These conditions cannot be justified either by any adverse impact the repairs will cause or by the California Coastal Act and violate constitutional protections for property. We first established this principle in 1987 in Nollan v. California Coastal Commission, and yet the Communion tries to evade the law whenever it can. For more, see our blog post here. We expect a decision before August 3rd.

We sue the Coastal Commission, again

This time, in Greene v. California Coastal Commission, we’re challenging the Coastal Commission’s imposition of a five-foot setback on a home expansion project. While the neighbors of Mark and Bella Greene have built their homes with one-foot setbacks, and while the City of Los Angeles approved the Greene’s plans, the Coastal Commission decided to do its own thing and impose a five-foot setback. One reason was supposedly to protect the Greene’s privacy. Thanks but no thanks, the Greene’s would rather have the living space inside their home.As it happens, that will dramatically alter and diminish the remodel and the Coastal Commission is once again ignoring the law that requires that the conditions it places upon permits to have some meaningful relationship to an impact caused by the permit. For more information, see our blog post here.