President's weekly report — August 8, 2014

August 08, 2014 | By ROB RIVETT

Environment — Victory in California Supreme Court

The California Supreme Court issued a unanimous decision in Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores) There, after Tuolumne County voters submitted an initiative allowing a Wall-Mart store, the County adopted the initiative.  However, anti-Wall-Mart activists under the banner of “Tuolumne Jobs & Small Business Alliance” (in reality a labor union front group) sued, claiming that the adoption of the initiative was illegal because it didn’t go through an Environmental Impact Report process prior to adoption.  But, as our amicus brief argued, the California Environmental Quality Act does not require such reports for initiatives.  As our blog explains, the Court agreed with our policy argument that the adoption by the County of the proposed initiative was not anti-democratic because voters remain free to pass a referendum to undo the Wall-Mart approval.

Environment — Endangered Species and Critical Habitat Regulations

PLF has submitted a comment letter to the U.S. Fish & Wildlife Service in response to the Service’s terribly deficient proposed regulations on how “critical habitat” is designated.  Critical habitat is supposed to include habitat that is essential to the survival of a species and once designated there can be a much more extensive process for obtaining federal permits — such as wetlands permits.  Excessive designations of critical habitat hurt not only the landowners affected by an erroneous designation, but they also distract F&WS from focusing its efforts on habitat that truly is critical.   For more detail on the Service’s proposal to vastly expand its authority over any habitat, even land not currently occupied by a species, see our blog post.  F&WS should recognize that its proposed rule misinterprets the Endangered Species Act, would be unhelpful for endangered species, and could have terrible consequences for humans.

Equality Under the Law Project — Double Standards and Discrimination at State

We filed this reply brief today in Shea v. Kerry, where we are representing an individual who was not promoted at the U.S. Department of State because he didn’t qualify for a discriminatory preference.  As our blog explains, this case could be extremely important because we are working to correct the mistaken notion that Title VII of the Civil Rights Act allows for two standards — one for discrimination against persons who qualify as members of a minority and another lesser standard that presumes that discrimination against white males is lawful. However, neither the Act nor the Constitution allows anything other than equal protection under the law.

Equality Under the Law Project — Higher Education

We filed this amicus brief in Fisher v. University of Texas, a case on remand to the 5th Circuit after Abigail Fisher won before the Supreme Court.  As you may recall, the Supreme Court held that the University could practice discrimination only if had demonstrated under a “strict scrutiny” standard the need to discriminate (here to obtain “diversity”) and that no less discriminatory alternatives were available.  After the case was returned to the Fifth Circuit, a three-judge panel of that court once again held that the University’s race-conscious admissions policy was okay.   We’re supporting a request that all the judges on the Fifth Circuit take a look at this case.  As our blog notes, we don’t think the panel’s decision comports with the Supreme Court’s direction because it neglects to mention the adverse costs of discriminatory admission policies.

School Choice — Colorado

We filed this amicus brief in Taxpayers for Public Education v. Douglas.  There, after school district adopted a program that provides privately funded scholarships for students to attend a “private-partnership” school of their choice, the district was sued by the usual suspects.  PLF’s amicus brief explains that school choice is an important strategy for improving education, and the fact that some students may voluntarily attend a school with a religious affiliation doesn’t amount to any government endorsement of religion.  For more, see our blog post on the case.


The Ninth Circuit Court of Appeals this week threw out the constitutional challenge to Obamacare’s “Independent Payment Advisory Board”the group of “Platonic Guardians” charged with writing laws relating to Medicare–on the grounds that case was brought too early. The Board’s powers are invoked based on a certain economic formula, but because that hasn’t happened yet, the court held that it was too early to rule on the constitutional issues involved. You can read that decision here.   We had filed this amicus brief in support of the challenge brought by our friends at The Goldwater Institute.