April 29, 2017

Weekly litigation report — April 29, 2017

By James S. Burling Vice President for Litigation
  • Supreme Court requests further briefing in affordable housing case
  • Victory in Anaheim parent-trigger case
  • Brief opposing EPA regulatory overkill
  • Senate hearing addresses PLF wetlands case
  • WOTUS at SCOTUS
  • Wolf Releases Revived

Supreme Court requests further briefing in affordable housing case

At least some of the justices at the Supreme Court are interested enough in our challenge to West Hollywood’s affordable housing mandate (aka “inclusionary zoning” exaction) to ask the City to file a brief. This is the case, 616 Croft Avenue v. City of West Hollywood, where the City is demanding a couple to pay $540,000 in exchange for a permit to replace two homes with an 11-unit condominium project. Because building a net of nine new housing units should serve to increase supply, we think the City’s demand has nothing to do remedying any impacts caused by the development and everything to do with the city’s attempt to treat development permits like ATM machines. We received quite a bit of amicus support and are heartened that the Court has taken enough interest to ask for more briefing. For more, see our blog post here.

Victory in Anaheim parent-trigger case

A few years, California passed a law allowing parents in failing schools to “pull the trigger” and change the management of the failing school, potentially creating a charter school. Naturally, those who most thrive on failure — the existing school districts and the teachers’ unions — were and are very unhappy. After all, how can parents who have no pedagogical degrees and collect no union dues determine what is best for their children’s education? So the schools obtained a waiver so they could suspend the schools’ “report cards.” By eliminating the report cards, the theory went, no school could be failing and therefore the parent trigger couldn’t be pulled. But parents of children in a school that had previously failed ten years in a row weren’t happy about this ruse, and they sued. This week, a California Court of Appeal ruled in favor of the parents in this decision in Ochoa v. Anaheim City School District. We had filed this amicus brief on behalf of PLF and a parent group. For more, see our blog post here.

Brief opposing EPA regulatory overkill

PLF filed this amicus brief on behalf of itself, he Competitive Enterprise Institute and the National Federation of Independent Business Small Business Legal Center, in the Supreme Court of the United States asking the Court to grant review of American Municipal Power v. United States Environmental Protection Agency. We’re supporting a challenge to an Obama-era EPA rule that would hold boiler operators strictly liable for pollution caused by boiler breakdowns. The Clean Air Act is pretty clear that rules and regulations must be feasible. Unfortunately, holding people to a draconian zero breakdown standard is neither feasible nor reasonable and as such, violates the act. For more, see our blog post here.

Senate hearing addresses PLF wetlands case

Our Duarte Nursery v. Army Corps of Engineers case was front and center at a Senate hearing this week on regulatory overkill and WOTUS. Of special interest to some Senators was the Corps’ insistence that the ridges and furrows from normal plowing are “mini-mountains” of upland created from wetland soil, thus making the plowing outside of the “normal farming” exemption to the Clean Water Act. Not even Franz Kafka could have imagined such bureaucratic absurdity. For more, see our blog post here.

WOTUS at SCOTUS

We filed this opening brief in our challenge to the Waters of the United States (WOTUS) rule, which is before the Supreme Court on an important jurisdictional question. While the underlying case, National Association of Manufacturers v. Department of Defense, concerns the federal government’s control over wetlands — and whether that includes vast areas of dry land — this particular case is about where a challenge to the rule should be brought in the first place. The Sixth Circuit Court of Appeals thought that it, rather than a trial court, should have the first shot at reviewing the regulation. But that’s not what the Clean Water Act says and it would deprive property owners of an important opportunity to make a record. And, as our blog explains here, this case is important even if the President eventually rescinds the WOTUS rule.

Wolf Releases Revived

The Tenth Circuit issued this negative decision in New Mexico v. Department of Interior, that lifts a ban on the federal government’s practice of releasing wolves into New Mexico against the wishes of the state. Although the state had acceded to these wolf releases for a number of years, it became increasingly concerned over the impact on livestock and people, and asked the federal government to review its polices. When the feds refused, New Mexico obtained an injunction. But now the Tenth Circuit has reversed, holding that New Mexico hadn’t demonstrated enough harm to have standing in the lawsuit. As our blog points out here, we don’t think this is accurate. We had filed this  amicus brief arguing that the feds should not introduce more wolves until it reviews the impact of the releases.  This is especially true in light of the impact that the wolves have on other prey species, such as wild deer and elk populations as well as livestock and pets.

 

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American Municipal Power v. Environmental Protection Agency

Dozens of industrial companies and trade organizations challenged two Clean Air Act-related boiler regulations imposed by the Environmental Protection Agency (EPA): the Major Boilers Rule and the Area Boilers Rule. These rules allow uninjured citizens to sue regulated companies should their boilers malfunction. Lower courts upheld the rule and the boiler owners and operators petitioned the U.S. Supreme Court to review the case. Because the Clean Air Act requires regulated parties to avoid hazardous air pollution only where “achievable,” PLF supports the petition and argues that the text of the law exempts malfunctions from the stringent CAA requirements and its citizen suit provision.

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