May 8, 2015

President's weekly report, May 8, 2015

By President's weekly report, May 8, 2015

Free Enterprise project — tort reform in Texas

In this decision the Texas Supreme Court reversed dangerous lower court decision in Genie Industries v. Matak.  Here, while working on a church ceiling using a genie lift, despite training, despite explicit and highly visible warning labels, despite a verbal warning from a church supervisor, and despite the sheer stupidity of the move, employees withdrew the lift stabilizers and attempted to move the fully-extended lift, while one worker teetered forty-feet above the floor.  When the inevitable happened, the parents of the dead employee sued Genie.  A sympathetic court ruled against Genie.  PLF filed an amicus brief in the case. Today, the Texas Supreme Court reversed.  For more, see our blog post here.

First Amendment lives in Virginia

Last month, we celebrated when the City of Alexandria repealed its unconstitutional ban on “For Sale” signs, which we were challenging in our lawsuit, McLean v. City of Alexandria. Scott McLean (along with hundreds of others) had been fined for parking their cars with “For Sale” signs displayed.  This week, we won the legal battle when the U.S. District Court for the Eastern District of Virginia ruled in our favor, declaring that the City violated Scott McLean’s First Amendment rights when it stopped him from advertising his car for sale. Our blog post on the case has more detail.

Environmental penalties and the rule of lenity

We filed this amicus brief today in BP Exploration v. United States.  This case arises out of the infamous Deepwater Horizon oil spill in the Gulf of Mexico.  As most people recall, the oil went through the well owned by BP and then into a five-story high blowout preventer stack owned and operated by Deepwater Horizon.  When the blowout preventer malfunctioned, oil rushed up onto the drilling rig platform and there was a catastrophic explosion and spill.  Note that the oil did not spill out of the well itself, but out of the pipes and apparatus that were on top of the well. While the culpability of the operators of the Deepwater Horizon are clear — clear enough for them to settle for a $1 billion fine, the culpability of BP under the Clean Water Act is a lot less clear.  That is because the statute penalizes a “discharge” and there was no actual discharge from the well owned by BP — the spill occurred once the oil left the well.

BP well at very bottom of picture, below blowout preventer.

Nonetheless, the Fifth Circuit found that it was liable for a “discharge” that is prohibited by the Clean Water Act and assessed fines of over $13 billion  (this is in addition to the billions in compensation that BP has and is paying to those injured by the spill.)  Our concern is that when the parameters of liability are ambiguous, courts should not automatically find liability.  We’ve seen this issue before, such as in United States v. Hanousek, when an off-duty supervisor was sent to prison when his crew busted a pipeline that sent oil into the Skagway River.  The point of our brief is to urge the United States Supreme Court to take up this case in order to set clear guidelines on how penalties should be assessed when there is ambiguity surrounding the liability.

Equality under the law project — Voting equality and making every vote count

In Davis v. Guam, the Ninth Circuit ruled here that a challenge may proceed against a scheme in Guam in which only native inhabitants are allowed to register to vote on an independence plebiscite.  Because the plebiscite won’t occur until 70% of the native inhabitants sign on, Guam had argued the challenge was not ripe.  PLF filed this brief in support of Davis, and the court held a very memorable oral argument last year. Today, in a 2-1 opinion, the Ninth Circuit held that Davis’s case is ripe and he has standing to challenge the race-based registration process. For more, see our blog post here.

Environment — EPA’s “Waters of the United States” rulemaking

Be sure to hear our podcast by Reed Hopper on EPA’s proposed “Waters of the United States” rule, a rule that would make virtually every damp spot, and places above damp spots, subject to the federal government’s wetlands regulations.

Reed Hopper, a PLF principal attorney and head of the organization’s environmental litigation team, discusses the EPA’s and Army Corps of Engineers’ proposed “Waters of the United States” (WOTUS) rule that vastly expands federal control over water bodies in the nation.  Joining Reed is Todd Gaziano, executive director of PLF’s DC Center and a senior fellow in constitutional law.  Reed recently appeared on a panel at The Heritage Foundation, an event co-sponsored by PLF, to separate the facts from fiction about the controversial rule. He spoke on the panel moderated by Heritage’s Daren Bakst that included Don Parrish of the American Farm Bureau.

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