Weekly litigation report — January 14, 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 filed

“Cap and Trade” argument set for Tuesday

The California Court of Appeal will hear our challenge to A.B. 32, California’s cap and trade program that has morphed into a billion dollar tax on industry in violation of California’s constitution. Our case, Morning Star Packing Company v. State Air Resources Board, combined with California Chamber of Commerce  v. State Air Resources Board, will be argued together so the court can determine whether our state constitution’s requirement for a two-thirds majority before taxes can be raised means what it says means. For more, visit our web page here and our blog post here.

Supreme Court turns down free speech case

We received disappointing news that the Supreme Court denied our cert petition in Bennie v. Munn. PLF attorneys represent Bob Bennie, a financial analyst and Tea Party leader in Nebraska. Bennie was targeted for retaliation by state financial regulators because he expressed political viewpoints that they didn’t like. Although the lower court believed that Bennie had been targeted for his views, it didn’t find that a “person of ordinary firmness” would have been deterred from speaking out — even though Bennie lost his job. The Court of Appeals in turn declined to give an independent look at the application of that “ordinary firmness” standard. Although our petition received a lot of support, the Court let the lower court ruling stand. For more, see our blog post here.

The public trust doctrine in Washington State Continue reading

PLF will present oral argument next tuesday in California energy tax case

Next Tuesday I will be arguing on behalf of Morning Star Packing Co., the National Tax Limitation Committee, and several other clients in PLF’s challenge to California’s unconstitutional auction of air emissions permits. This case will determine whether California can continue raising billions in illegal taxes by auctioning off permits that companies like Morning Star need to stay in business and comply with state regulations, or whether Propositions 13 and 26 will be enforced to protect against illegal taxes.

This case boils down to a simple principle. Under the California constitution, the state can only require you to pay a fee when it issues you a permit if (1) the fee bears a reasonable relationship to the impact of the regulated activity, (2) is fairly apportioned among the fee payers, and (3) is only spent on the program that regulates the fee payers. Otherwise, the payment is a tax and cannot be collected without supermajority legislative approval.

In this case, the California Air Resources Board issues air emissions permits which companies like Morning Star need in order to comply with the state’s unique greenhouse gas reduction regulation. About half are issued for free, but the rest are sold at auction to the highest bidders. By holding the permits hostage in this way, the state is raising billions of dollars without legislative authority, in violation of constitutional protections against illegal taxes.

The State of California has capped your right to purchase gasoline, and then auctioned that right to investment banks, sovereign wealth funds, and international energy companies.

Welcome to power President Trump, now lawyer up

If nothing else, it’s been a wild ride. Nobody here at PLF can remember a stranger election season. From June 16, when Donald Trump announced he was running for President, to the morning of November 8, few of us understood that history was about to smack us on the side of the head like an errant golf ball on the 18th hole of the Trump National in New Jersey.Image result for inauguration

Along the way, there have been more than a few concerns about candidate Trump’s grasp on the complexities of the three-ring circus that is governing the greatest show on Earth. We had hoped that the last occupant of the oval office would have learned that a combination of a massive ego and a distorted sense of self-righteousness was not enough to govern. Here’s hoping that the new guy will be a quicker study on how to effectively manage both Congress and his own bureaucracy within the confines of his Constitutional power.

But our greatest hope is that Donald Trump meant it when he said he would reduce the size of the bureaucracy, cut back on job-killing regulations, and make life for the average American great again. It’s a tall order and there will be many obstacles.

For starters, the liberal left and the environmental industry have been on a fund-raising orgy that makes the feeding frenzy in Shark Week look like a Sunday school picnic. For them, this has been better than the ozone hole, species destruction, toxic air pollution and global warming rolled into one. Just visit their websites and learn how you too can donate your last dollar to defeat “not my President” when he tries to destroy the last vestige of nature and the environment by building new coal-fired power plants in every orphanage and critical habitat in the world. The left is promising to lawyer up and sue the President for every breath he takes.

So if the new President tries to roll back or replace regulations, he will be sued. If he tries to Continue reading

A good day for students’ school choice in Florida

Yesterday, the Florida Supreme Court rejected a union’s lawsuit challenging Florida’s tax credit scholarship program, and a Florida appellate court rejected a school district’s claim that charter schools violate the state constitution. These decisions protect K-12 students across the state.

Florida’s tax credit scholarship program allows businesses to get dollar-for-dollar tax credits for donations to organizations that distribute scholarships for children to attend private K-12 schools. To be eligible for the scholarships, a child must live in a household that earn up to 2.6 times the federal poverty level. Students may receive scholarships of up to $5,886, which is 82% of the state’s portion of per-pupil funding. Last school year, 78,664 children attended private schools with scholarships from the tax credit program. Even though study after study has confirmed that school choice programs like this improve outcomes for students in public and private school, unions continue to fight them. Continue reading

Water Transfer Rule upheld

Catskill Mountains, by Thomas Cole

Yesterday, the Second Circuit Court of Appeals rejected an environmentalist challenge to a 2008 EPA rule exempting water transfers from Clean Water Act permitting requirements.* In Catskill Mountains Chapter of Trout Unlimited v. EPA, the court held that EPA’s so-called Water Transfer Rule—which exempts the transfer of water from one navigable water to another from permitting requirements—reasonably interprets the pertinent but ambiguous provisions of the Clean Water Act. It therefore is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, a seminal 1984 Supreme Court decision which established the modern framework for judicial review of administrative agency interpretation of statutes. Under that framework, courts reviewing agency interpretations of statutes must accept those interpretations, even if they are not the “best,” so long as they are “reasonable.” Continue reading

Do minor bureaucrats tell federal judges what to think?

Last week PLF filed this amicus brief in the Supreme Court of the United States in Gloucester County School Board v. G.G. The question in this case is whether federal judges interpret federal law, or whether low level agency bureaucrats do. PLF takes the position that judges have the Constitutional responsibility to independently read and interpret federal law, as a check on the executive agencies whose Constitutional role is to enforce the law.

The context of that question in this case is whether federal law requires local schools to allow transgender students to use the restroom of their choice, or whether it allows those schools to require all students to use the restroom of their biological sex. This topic is one of ongoing public debate, and reasonable minds can disagree on how to best accommodate transgender students. But one thing is certain: federal law does not dictate how local school districts resolve this difficult question.

But in this particular case, a low level official in the federal Department of Education wrote a private letter to the Gloucester County School Board in North Carolina, telling the district that in his opinion, the federal law which protects the ability of schools to provide sex segregated restroom facilities requires that schools allow transgender students to use the restroom of their choice. While no reasonable reading of the statute or implementing regulations supports this opinion, the lower federal court decided the case in favor of the government, on the ground that the Acting Deputy Assistant Secretary for Policy (yes, that is a thing in the federal government) has the power to tell the court what federal law requires.

Our brief argues that it is the exclusive responsibility of the federal courts to interpret federal law, and that the assignment of this responsibility to the judiciary in the Constitution is part of the essential separation of powers that checks the power of the federal government and protects individual liberty. The brief also surveys the long history of the Education Department’s unilateral and extralegal expansion of its authority over collegiate and even high school education in the United States, through methods like the private letter at issue in this case. We call on the Supreme Court to hold that it and the lower federal courts have a responsibility to independently interpret the requirements of federal law, and not minor bureaucrats.

In the words of Chief Justice Marshall, as they appear in a plaque at the Supreme Court of the United States

Washington Supreme Court to consider the limits of the public trust doctrine

The Washington State Supreme Court is set to hear arguments next month in Chelan Basin Conservancy v. GBI Holding Co., which is a very important and far-reaching case concerning the public trust doctrine.

Broadly stated, the public trust doctrine holds certain waters open to the public for commerce, navigation, fishing, and recreation, regardless of who owns the submerged lands. The doctrine—which finds its origins in Roman law’s recognition the land beneath the sea is unsuitable for private use—directs the sovereign to manage and administer waters in a manner that does not substantially impair the public rights.

Over the years, however, environmentalists have tried to convince courts to expand the “public trust doctrine” in order to give the public (i.e., activist groups) a right to veto any private activity that could potentially impact water. Continue reading

Can the government define away your property?

The U.S. Supreme Court heard an oral argument recently that would be more at home in a Kafka novel than a real court transcript. In Nelson v. Colorado, the Court is considering whether Colorado can force an exonerated individual to prove her own innocence to retrieve the fines and fees she had to pay because of her conviction.

Bizarrely, the court and the advocates spent most of the time arguing over whether these exonerated people had any interest in the money that they shelled out because of their convictions. The solicitor general argued that the money that the state takes from criminal convicts becomes the state’s forever, even if their conviction is later overturned. He basically argued that the state could deem property to no longer be yours with a wave of the wand. At the climax of this surreal argument, Justice Breyer asked whether the state could just decide to keep a $15 million criminal fine even after the defendant was exonerated. The solicitor general said yes. Thankfully, the Court didn’t seem to bite on that point.

To read more about the deeper legal issues at play in this important case, check out my op-ed just published by the San Francisco Daily Journal and the amicus brief we filed with the Court.

Supreme Court denies review in Bennie v. Munn

This morning, we received disappointing news that the Supreme Court denied our cert petition in Bennie v. Munn.

PLF attorneys represent Bob Bennie, a financial analyst and Tea Party leader in Nebraska. Bennie was targeted for retaliation by state financial regulators because he expressed political viewpoints that they didn’t like.

The issue in the case is whether an appellate court should conduct independent review of a trial court’s disposition of Bennie’s First Amendment claim or simply rubber stamp the trial court opinion. The issue is important, and the court of appeals viewed it as “likely [] dispositive” to the outcome. Yet the Supreme Court denied review.

Continue reading

Court should reject government double speak in jaguar rule

In 2014, the federal government designated thousands of acres in New Mexico as “critical habitat” for the jaguar. The designation is absurd, because as cat-lovers know, jaguars prefer the wet, tropical climates of Central and South America forests, to the dry, arid wilderness of the Southwest. The designation should also trouble liberty-lovers, because it violates the limits of the Endangered Species Act. That’s why PLF sued the U.S. Fish and Wildlife Service on behalf of New Mexico Farm & Livestock Bureau, New Mexico Cattle Growers’ Association, and New Mexico Federal Lands Council. Friday, we filed our reply brief which explains why legal precedent and the statutory text require the court to overturn the illegal designation.

The Endangered Species Act limits critical habitat to land that is either “essential for the conservation” of the species, or was “occupied” by the species when when it was first listed as endangered. No area of New Mexico qualifies. There is zero evidence that jaguars actually occupied New Mexico in 1972—not even a single track or sighting in the entire state between 1937 and 1994. Yet the government claims two areas in New Mexico were “occupied” in 1972. It’s evidence? One sighting in each area—twenty and thirty years after 1972. Continue reading