President's weekly report — May 27, 2016
PLF testifies before Senate Subcommittee
PLF’s Damien Schiff testified before the Senate Subcommittee on Fisheries, Water, and Wildlife concerning agency abuses of private property owners under the Clean Water Act. (PLF’s testimony begins at minute 26:25 here). We focused on a number of recent and ongoing PLF cases challenging EPA’s and the Corps’ expansive and aggressive assertions of the authority despite the federal courts’ stay on the agencies’ WOTUS rule-making. One of those cases was Tin Cup, LLC v. U.S. Army Corps of Engineers, our recently filed challenge to the Corps’ attempted regulation of permafrost. That issue was of keen interest to the Subcommittee’s chairman, Senator Sullivan of Alaska. Also of note are the questions from Senator Whitehouse. In 2001 PLF won Palazzolo v. Rhode Island, a case argued by Whitehouse who at the time was Rhode Island’s attorney general.
Challenge to California cap and trade continues
As the press picks up on the faltering cap and trade scheme in California, a faltering that may hurt the not-so-high high speed train boondoggle, see here and here, we filed this supplemental brief in our own challenge, Morning Star Packing Company v. California Air Resources Board. This scheme, which forces some emitters of carbon dioxide to pay for allowances in order to operate their existing businesses is either a tax in violation of California’s Proposition 13 or it’s a fee that violates Proposition 218. For more see our video and blog post.
Tort reform — mixed decision from the California Supreme Court
The California Supreme Court issued this mixed decision in Webb v. Special Electric. Here Special Electric brokered the sale of asbestos from South Africa to Johns-Manville that incorporated it into some pipe which it then sold to a pipe supply company that sold the pipe to another pipe supply company. When the latter’s employee, Webb, developed lung disease, he sued. The question is how far up the supply chain can such liability run — and to whom did the original broker have a duty to warn about the dangers of asbestos? A jury awarded Webb $900,000 against Special Electric. We had filed this amicus brief in the Supreme Court arguing that the “learned intermediary doctrine” should be applied, meaning that because Johns-Manville was itself an expert on asbestos, Special Electric did not have a duty to make an unnecessary warning. Nevertheless, the Supreme Court has now upheld that verdict. The court ruled that Special Electric was liable because while it was clear that Johns-Manville knew in general about the dangers of asbestos (and thus the learned intermediary doctrine applies) Special Electric didn’t prove that Johns-Manville knew about the particular dangers of this particular type of South African asbestos. That lack of proof negated the doctrine in this case. For more detail and analysis of the decision, see our blog post here.
Oral argument set in long-running anti-discrimination lawsuit
Nearly two years after briefs were submitted, the Court of Appeal has set Coral Construction and Schram Construction v. City and County of San Francisco, for argument on the City’s motion to dismiss the case. Argument will be in the First District Court of Appeal on July 12. This case alleges that San Francisco’s race and gender-based contracting policies violate Proposition 209. The trial court ruled that the case is moot because the City rescinded the ordinances in question. However, it is clear that the City would have reinstated the preferences if and when the City won the lawsuit and the injunction was lifted.
Will California’s tax-limitation Propositions 13 and 218 go up in smoke?
We filed this amicus letter brief in California Cannabis Coalition v. City of Upland asking the California Supreme Court to take up the case. Here, the appellate court determined that local taxes adopted by initiative are not subject to the requirements of Proposition 218, which was intended to cover all new local taxes. Proposition 218 also requires that all new general taxes be decided by a majority of the voters in a general election. PLF argued that the voters sought the right to vote on all new taxes by adopting three initiatives, all of which were added to the State Constitution. The voters likely did not differentiate between taxes imposed by local government and those imposed by initiative, and none of the literature submitted to the voters regarding Proposition 218 addresses that distinction
What to read next
One of the most fundamental rights of American citizens is the right to seek redress from illegal government action in a court of law. But the federal government has an arsenal of weapons it wields to deny or curtail this right. Nowhere is this more prevalent than in the government’s attempts to stifle landowner suits challenging federal agency action under the Clean Water Act.