FedSoc Forums

In AEP v. Connecticut (2011), the Supreme Court unanimously rejected federal common law nuisance claims brought by states and cities against companies alleged to have contributed to global warming by emitting greenhouse gases. The Court held that Congress, by enacting the Clean Air Act, had displaced the federal common law of nuisance and gave jurisdiction over these issues to the EPA. The Court declined to open up a “parallel track” to enforcing carbon emissions standards in the federal system via the federal courts. Since that time, states and municipalities in California and elsewhere have brought similar suits under state nuisance law, but judges have indicated this problem needs a national solution that “must be fixed by our [other] political branches.” At present, the First, Second, Fourth, Ninth, and Tenth Circuits are hearing arguments about whether these issues belong in the federal courts, state courts, or elsewhere.

Featuring:
-- Theodore J. Boutrous Jr., Partner, Gibson, Dunn & Crutcher LLP

On January 10, the White House Council on Environmental Quality (CEQ) proposed revisions to its regulations for implementing the National Environmental Policy Act (NEPA), signed into law in 1970. CEQ has not comprehensively updated these regulations for forty years.
Since its enactment, the NEPA environmental review and permitting process has become increasingly complex and time-consuming and extends far beyond what Congress originally intended. Importantly, NEPA is a procedural statute that requires Federal agencies to assess the environmental impacts of proposed major Federal actions. The purpose of NEPA is essential to sound governments. The chosen means is a “procedural” statute that requires Federal agencies to prepare a detailed statement on environmental impacts from a proposed Federal action, alternatives to the proposed action, unavoidable adverse effects, and any irreversible and irretrievable commitments of resources that would be involved.
The average length of an environmental impact statement is over 600 pages and the average time to complete a NEPA review of major projects is four and a half years. NEPA analyses are frequently challenged in the courts, which delays and increases the costs for transportation, water, pipelines and other infrastructure that benefit States, Tribes, and local communities. CEQ’s proposal would modernize and clarify the regulations to facilitate timely NEPA reviews by Federal agencies in connection with proposals for agency action.
This teleforum is co-hosted by the Federalist Society and ConservAmerica and will offer background on CEQ’s proposal and discuss caselaw that has resulted in calls for NEPA reform and modernization. Comments on CEQ’s proposal are due March 10.
Please click here for a Summary of Key Issues and Select Cases.
Featuring:
Prof. Richard Esptein, The Laurence A. Tisch Professor of Law, New York University, and Senior Fellow at Hoover Institute
Mario Loyola, Senior Fellow, Competitive Enterprise Institute and former Associate Director for Regulatory Reform, White House Council on Environmental Quality
Moderator: Brent Fewell, General Counsel, ConservAmerica


Please dial 888-752-3232 to access the call.

On February 24, 2020 the Supreme Court will hear argument in two consolidated cases, U.S. Forest Service v. Cow Pasture River Assn. and Atlantic Coast Pipeline Assn. v. Cow Pasture River Assn., in which the Fourth Circuit invalidated the permit for construction of a multi-billion-dollar natural gas pipeline that crosses the Appalachian Trail on Forest Service land in Virginia. The issue is which, if any, federal agency can authorize construction that impacts the Trail, which crosses private, state and federal land from Georgia to Maine and operates under a host of statutes, regulations and private agreements. The case is a textbook study in legislative interpretation, congressional intent and private-public cooperative agreements.

Our presenters are two of the lawyers who filed amicus briefs for parties directly impacted by the case. Keith Bradley, counsel for the Appalachian Trail Conservancy, is a partner with the Squire Patton Boggs firm in Denver and former counsel with the Department of Energy, where he was lead lawyer on implementation of the Iran nuclear deal. Tom Jensen is a partner with Perkins, Coie in Washington, D.C. He formerly served as the majority counsel to the U.S. Senate Committee on Energy and Natural Resources and was the associate director for natural resources on the White House Council on Environmental Quality. Roger Marzulla, partner at Marzulla Law in Washington, D.C. and former head of the U.S. Justice Department’s Environment and Natural Resources Division, will moderate.

Featuring:
-- Keith Bradley, Partner, Squire Patton Boggs (Denver)
-- Thomas C. Jensen, Partner, Perkins Coie LLP
-- Moderator: Roger J. Marzulla, Partner, Marzulla Law, LLC

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. Please join John Eastman for a preview of oral arguments in this important case.

Featuring:
-- Prof. John Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law

The Trump Administration recently released its final rule defining “waters of the United States” under the Clean Water Act. This rule, called the “Navigable Waters Protection Rule” is the replacement for the repealed 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define “waters of the United States” in a way that passes legal muster. Criticism has long-focused on the alleged overreach by the agencies, the vagueness of the definition, and a disrespect for the state role in addressing clean water as envisioned by Congress. However, many critics of the new EPA and Corps’ rule argue that it is too narrow and not properly based on science. Please join us as our experts discuss the history of the “waters of the United States” definition, explain the new rule and what waters would be regulated, and provide their insight and perspective on the impact of this major new rule.

Featuring:
-- Daren Bakst, Senior Research Fellow in Agricultural Policy, The Heritage Foundation
-- Tony Francois, Senior Attorney, Pacific Legal Foundation
-- John Paul Woodley, Principal, Advantus Strategies, LLC

In January 2017, the Federal Trade Commission (FTC) filed an antitrust complaint against Qualcomm in the Northern District of California. The FTC alleged that Qualcomm had unlawfully monopolized the market for certain semiconductors important in smartphone technology. Among other things, the FTC claimed that Qualcomm had maintained its market position by requiring chip customers to license their chips separately (known as the “no license, no chips” policy) and had refused to license its standard-essential patents (SEPs) to competitors.

Judge Lucy Koh held a bench trial in January 2019 and issued a decision in favor of the FTC in May 2019. In a lengthy opinion, the court determined that Qualcomm’s “no license, no chips” policy violated antitrust law and that Qualcomm had a separate antitrust duty to deal with its competitors. Judge Koh then issued an injunction that, among other things, prohibited Qualcomm from conditioning the supply of chips on a customer’s patent-license status and required Qualcomm to negotiate and make available licenses on FRAND terms.

Qualcomm appealed to the Ninth Circuit. In August 2019, the Ninth Circuit issued an order partially staying Judge Koh’s injunction. According to the Ninth Circuit, “Qualcomm has shown, at a minimum, the presence of serious questions on the merits” of the district court’s opinion. Additionally, the Ninth Circuit needs to decide whether the district court’s “order and injunction represent a trailblazing application of the antitrust laws, or instead an improper excursion beyond the outer limits of the Sherman Act.”

While these issues alone would be interesting, this case is even more intriguing because the Department of Justice (DOJ) has intervened in the case – in favor of Qualcomm. The DOJ filed an amicus brief in favor of the stay of injunction, as well as an amicus brief on the merits. The Ninth Circuit has also granted DOJ’s request for five minutes of oral argument time. Oral argument in the Ninth Circuit is set for February 13, 2020.

This Litigation Update teleforum will recap the district court’s decision, discuss the arguments likely to be made on appeal, and explore the bigger issues this case brings up for antitrust policy.

Featuring:
-- Hon. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
-- Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law

Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based. Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome. This Teleforum will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record. It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation. It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicting considerations that an agency must take into account.

Featuring:
-- Prof. Susan Dudley, Director, GW Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
-- Prof. Brian F. Mannix, Research Professor, Regulatory Studies Center, George Washington University

Professor Brian Fitzpatrick of Vanderbilt Law School and Ted Frank of the Center for Class Action Fairness debate Professor Fitzpatrick’s provocative new book, The Conservative Case for Class Actions (University of Chicago Press).

In 2016 the United States Department of Justice and Apple twice went to federal court over whether Apple could be required to assist the government in unlocking cell phones used by persons under investigation for criminal conduct. One case involved access to an iPhone used by one of the persons responsible for the mass shootings in San Bernardino, California. Another case involved an iPhone seized from a narcotics trafficking suspect in Brooklyn, New York. In both cases, however, the litigations were terminated as moot without final resolution when the government was able to access the iPhones in question without Apple’s assistance. Once again, however, the government and Apple are at odds — this time over access to iPhones used by a Saudi military trainee who in 2019 killed three sailors at a Navy base in Pensacola, Florida. What is the basis for compelling a third party to assist the government in its criminal investigations in accessing encrypted communications using its platforms? What are the key legal and policy issues at stake in this controversy? Joseph V. DeMarco of DeVore & DeMarco LLP, who filed amicus briefs in the 2016 litigations on behalf of various law enforcement organizations in support of the government, and who previously prosecuted cybercrime as an Assistant United States Attorney in the Southern District of New York, will explore these issues and offer perspectives on the implications of this crucial debate for national security as well as for criminal and civil litigations in state and federal court.

Featuring:
-- Joseph V. DeMarco, Partner, DeVore & DeMarco LLP

Last month, the Supreme Court denied certiorari in City of Boise v. Martin, a case out of the U.S. Court of Appeals for the Ninth Circuit. The case involved a challenge to Boise’s enforcement of its criminal law prohibiting public camping against the homeless. The Ninth Circuit held that the Eighth Amendment’s prohibition on cruel and unusual punishment prohibits the enforcement of the law against the homeless when there are insufficient beds available in shelters. Although the Court denied review, the Ninth Circuit’s decision raises many important questions about many issues, including the effect on the homeless and surrounding communities, ways that law enforcement might react to their inability to enforce this law, and the potential constraints placed on the approximately 1600 municipalities in the Ninth Circuit—in particular San Francisco and Los Angeles, which have significant homeless populations—in their efforts to combat homelessness and the ills associated with it. Learn about this case's history, facts, unresolved questions, and legal implications moving forward.

Featuring:
-- Prof. Andrew Hessick, Judge John J. Parker Distinguished Professor of Law and Associate Dean for Strategy, The University of North Carolina at Chapel Hill School of Law
-- Prof. Carissa Hessick, Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law, Associate Dean for Faculty Development, The University of North Carolina at Chapel Hill School of Law
-- Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC