June 2, 2018

Weekly litigation report — June 2, 2018

By James S. Burling Vice President for Litigation
  • Happiness is a burger on a warm bun, a cold draft beer and freedom of speech
  • Courts shouldn’t look the other way when federal agencies seize power Congress never gave them
  • Common sense prevails in Regulatory Flexibility Act case
  • California agency’s “sky-is-falling” argument unsupported by the facts
  • On the road to the Supreme Court
  • PLF delegates to itself the responsibility to reinvigorate the non-delegation doctrine (somebody has to do it)
  • PLF participation at Supreme Court noted by Scotusblog.com 

Happiness is a burger on a warm bun, a cold draft beer and freedom of speech

chef On Tuesday we filed this motion opposing Virginia’s attempt to get our happy hour advertising case kicked out of court. In Chef Geoff’s v. Virginia Department of Alcoholic Beverage Control, we’re arguing that the state can’t censor truthful information about legal business practices—like the price of happy hour drinks—just because it thinks censorship is in the public interest.  The government is now arguing that restaurant owner Geoff Tracy should be dismissed because the law restricts his restaurant’s speech, not his own words.  It also claims that he has to wait for the government to cite him for violating the law before bringing suit.  As we wrote on the blog, we disagree.  Tracy is responsible for crafting the business’s happy hour ads, and he often speaks on its behalf.  The fact that he’s had to censor himself to avoid potential prosecution is an injury that he can ask a federal court to redress.

 Courts shouldn’t look the other way when federal agencies seize power Congress never gave them

 This week, PLF filed a cert petition urging the Supreme Court to review California Sea Urchin Commission v. U.S. Fish and Wildlife Service. The case presents a critical question about the power of federal agencies: are they limited to the powers granted by Congress? Or, under the controversial Chevron deference doctrine, can agencies claim any power that Congress has not expressly forbidden? The answer to these questions will either reinvigorate or further undermine the Constitution’s separation of powers—the key protection of our individual liberty. Too much power has been concentrated in federal agencies for too long. It’s time for the Supreme Court to enforce the Constitution and give power back to Congress where it belongs. For more see our blog post.

Common sense prevails in Regulatory Flexibility Act case

 On Tuesday, a judge ruled that the government cannot shirk its duties under the Regulatory Flexibility Act (RFA), which requires the government to conduct an economic analysis of regulatory costs imposed on small businesses. The judge agreed with PLF and rejected the U.S. Fish & Wildlife Service’s argument that a recent critical-habitat designation didn’t regulate individuals and small businesses impacted by the designation. Instead, the agency lawyers argued the designation affected only other government agencies. The judge disagreed and held “it would run contrary to the RFA’s design if one component of the Department of Interior could escape the requirement that the agency prepare a regulatory flexibility analysis for a final rule by simply ordering a sister agency to implement the rule on its behalf.” For more on this case see our blog post and visit our case page for California Cattlemen’s Association v. U.S. Fish & Wildlife Service.

California agency’s “sky-is-falling” argument unsupported by the facts

To ensure that California has up-to-date information about the status of endangered species, the California Endangered Species Act requires the Department of Fish and Wildlife to conduct status reviews of listed species every five years. The Department, which has failed to conduct status reviews for 231 species, has asked the San Diego Superior Court to absolve it of liability. It argues that conducting the status reviews would threaten California species with extinction. Today PLF filed this opposition to refute the Department’s baseless contention. The status reviews actually help California protect endangered species, by allowing the Department to focus its conservation efforts on species that actually benefit from those efforts. A hearing in this case, California Cattlemen’s Association v. California Department of Fish and Wildlife, is scheduled for July 6. For more, read our blog here.


On the road to the Supreme Court

 This week the U.S. Sixth Circuit Court of Appeals denied our petition for rehearing en banc in Marquette County Road Commission v. EPA. In this Clean Water Act case, we have challenged the EPA’s outrageous decision to veto our client’s state-approved plan to build a road in the Upper Peninsula of Michigan. The EPA rejected the road project despite the bipartisan support the plan has received and the positive environmental and safety consequences the road would have for the people of Michigan. Having lost in the lower courts, we will now seek relief at the highest court in the land. For more on the case, see our case page here.

PLF delegates to itself the responsibility to reinvigorate the non-delegation doctrine (somebody has to do it)

 On Thursday, we filed this amicus brief asking the Supreme Court of the United States to reinvigorate the non-delegation doctrine in a case pending on the merits known as Gundy v. United States. At issue in the case: a constitutionally impermissible re-delegation of legislative power from Congress to the U.S. Attorney General, under which Congress has illegally empowered the AG to decide, without the slightest guiding “intelligible principle,” the retroactive applicability of a criminal statute. We the people delegated to Congress the authority for writing laws, and Congress cannot re-delegate that power to an executive agency without any guidance whatsoever as to what it is looking for—if it does, then it runs afoul of the Separation of Powers that our Founding Fathers demanded of our federal government in the Constitution itself. The High Court’s acceptance of this case for oral argument signals (we hope) a willingness to revisit the non-delegation doctrine and re-invigorate it after 80+ years of lying dormant and unused. For more see our blog post here

PLF participation at Supreme Court noted by Scotusblog.com 

PLF’s participation at the Supreme Court, both on the merits and as amicus, is considered significant on scotusblog.com. This reflects PLF’s efforts to shape the law on a national level. For more, visit the website here.

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Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

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