President's weekly report — June 6, 2014

June 07, 2014 | By ROB RIVETT

Environment — No trust in the air

The D.C. Circuit issued this short unpublished per curiam decision in Alec L. v EPA, beating back a strange attempt to assert a “public trust” in the air.  This case seems to have been brought more for its optics than any serious legal argument.  This, and about 50 companion suits filed in state courts and administrative bodies, were brought on behalf of a group of minor “children” all concerned about their future in a future world made hot via global warming.  The notion was that there is some sort of “public trust” in the air that was being violated, thus giving the courts an opportunity to order the EPA (and analogous state entities) to regulate greenhouse gas emissions more than they already are.  After the case was summarily dismissed in the federal trial court, the “children” appealed.  Now the D.C. Circuit made short shrift of the argument, saying that there is no such thing as a federal public trust doctrine, in air, in water or in anything else.  As the Court noted, there have some very recent United States Supreme Court opinions eschewing the notion of a federal public trust doctrine, and those cases control.  We had intervened in this case along with the National Association of Manufacturers and you can read our brief here.  While a number of the state cases remain, we strongly doubt they will give the state courts any more cause to hijack state air quality regulations than existed in this case.  It’s hard to say whether the plaintiffs (or their adult guardians) brought this case more for its theater than for any serious legal argument.  In fact, it’s hard to say which is a worse read, the plaintiffs legal theories or the old science-fiction novel, “The Air Trust” written by socialist George England in 99 years ago.

Tort Reform — Judicial Tinkering with Warranties

We received a narrow decision from the Texas Supreme Court in MAN Engines & Components, Inc v. Shows today.  The question was whether a purchaser of an “as-is” second-hand good can sue the manufacturer for breaching an implied warranty of merchantability. In this case the “good” was a used yacht bought “as-is.”  The original owner bought the 55-foot vessel with a 2-year limited warranty on the engine.  But the “as-is” purchaser of the used boat claimed it had a longer “implied” warranty, and sued when the engine broke down.   The court bought the argument, and held the second-hand purchaser had a better warranty than the one the original owner paid for.  We filed this amicus brief arguing that such implied warranties can often lead to bad public policy — such as higher consumer prices.  Bottom line is that the court didn’t address the issues we were most interested in, because the defendant failed to properly raise or preserve them on appeal.  You can learn more on our blog here.

Litigation Reform — The case of the uninjured class action plaintiff

We filed this amicus brief in Spokeo v. Robins, a case involving an internet company that publishes consumer “credit estimates.”  To make a mistake in a credit estimate can open the publisher up to a statutory violation under the Federal Fair Credit Reporting Act.  But here, the mistake showed the plaintiff to have better credit than he actually had.  It made him to appear to be more stable, better educated, and with a better job than in reality.  So where was the injury?  There wasn’t one, but in the 9th Circuit a simple error is enough for their to be federal claim for damages.  As explained in more detail in our blog, our brief asking the Supreme Court to take this case explains that people who are not injured should not be able to use a statute as a money-extraction device because without an injury they really have no right to be in federal court in the first place.

Equal Opportunity Under the Law — Contracting Preferences

We filed this amicus brief in Dunnet Bay Construction Company v. Illinois Department of Transportation.  Based on a long line of U.S. Supreme Court cases, we’re arguing that the state has a heavy burden of proof under the “strict scrutiny” standard of review before the state can engage in raced-based preferences in public contracting.  Here, the Illinois Department of Transportation had a race-neutral program designed to encourage minority participation in public contracting.  But before it gave that program a chance, it replaced it with one with strict racial preferences.  But unless the state can prove that its program is “narrowly tailored” and that race-neutral alternatives, like the one it had in place but never actually used, are not available, the Constitution does not allow such discriminatory preferences.