Last Friday, the California Coastal Commission denied our petition, submitted on behalf of the Beach & Bluff Conservancy, to repeal the Commission’s after-the-fact permit fee regulation. The Commission concluded that charging presumptively five times, and in no case less than twice, what it would charge for a comparable before-the-fact permit was a “reasonable” amount and not punitive. Given that the five-times multiplier is only a few years old, yet the Commission has been issuing after-the-fact permits for decades, it’s hard to credit the Commission’s disavowal of any punitive motive: would the Commission have routinely undercharged by 80% for so many permits for so long?
Earlier today, Pacific Legal Foundation filed its response in opposition to the State of Florida‘s motion to dismiss PLF’s lawsuit challenging the State’s irrational law banning beer growlers. The growler, of course, is the industry-standard half-gallon containers of beer that craft beer enthusiasts prefer throughout the United States, and, per CBS News, is only completely illegal in Florida.
Together with our client The Crafted Keg, we allege that it makes simply no sense for Florida to allow gallon-size jugs of beer, and to allow quart-size jugs of beer, but at the same time to prohibit the industry-standard size that falls right in the middle of those two sizes.
The State does not want PLF and The Crafted Keg to have their day in court, and that is why the State has moved to dismiss the case. We think our client’s claims deserve to be heard.
In October, federal judge Nelva Gonzalez Ramos of the Southern District of Texas issued a far-reaching opinion striking down Texas’ new Voter ID law on several grounds. She not only found that the law violated Section 2 of the Voting Rights Act, but also that it was an unconstitutional burden on the right to vote under the Equal Protection Clause, unlawful intentional discrimination against Hispanics and African-Americans, and a poll tax in violation of the Twenty-Fourth Amendment. Although the Fifth Circuit stayed the injunction and allowed the Voter ID law to take effect in November, Judge Ramos’ decision has received quite a bit of publicity.
Disparate impact theory tells employers that they have broken the law when a concededly neutral hiring practice produces too many employees of one race and not enough of another.
Let’s say you’re an employer looking to hire 20 people from a pool of 100 applicants. You give the same standardized test to all 100 applicants and pick the top 20 scorers. Imagine that all agree the test is fair and you’ve acted with no intent to discriminate. Then the government tells you that your test had a disparate impact on a racial group. Federal regulations require you to record the race of each applicant, and the results show that the passage rate for one racial group was less than 80% of the rate of the highest scoring group. That’s enough for an initial showing of disparate impact.
Yesterday afternoon, PLF’s Todd Gaziano joined Mary Kissel on The Wall Street Journal’s Opinion Journal TV to talk about the bipartisan effort to rein in an unaccountable, and thus unconstitutional, government panel that can change almost anything “related to” Medicare.
PLF joined forces with over two dozen members of Congress, who it represents in an amicus brief filed with the U.S. Supreme Court, urging it to take up a case challenging the constitutionality of the Independent Advisory Board provision of Obamacare.
IPAB is completely insulated from constitutional checks and balances, and we argue that if the Supreme Court doesn’t act now, it may be too late to decide the case later. You can read our brief here.
You read that correctly. Today, California motorists have the right to buy as much gasoline as they want, and fuel companies have the right to sell as much as they can supply, at prices agreeable to both. But in the New Year, California will limit sales of gasoline, diesel, and natural gas and propane for business and home use.
The California Air Resources Board is doing this through its Greenhouse Gas Cap and Trade Regulation. This rule makes it illegal to burn conventional fuels like coal and natural gas in industrial facilities without a state permit for each ton of resulting carbon dioxide.* Since California only issues a limited number of allowances each year, the limit on carbon dioxide effectively limits the amount of fuel that can be used to produce it. Starting in two weeks, the limit will expand from factories and power plants to fuel used in ordinary cars and trucks, and natural gas and propane for home heating and cooking.
How is this going on without an enormous public outcry?
Last week, the San Diego U-T published my oped on the smelt water cutbacks. One of the commenters on the newspaper’s website contends that, this past water year, the Endangered Species Act protections for the smelt had no impact on California’s water supply. Instead, the cutbacks were imposed because of ESA protections for other fish species and for state-law requirements. The commenter is no doubt correct that regulations other than those for the smelt have negative impacts on the state’s water supply. But the criticisms that the oped levels against the smelt protections could be made with equal force against those for other ESA-protected fish in the delta. Moreover, a win for the farmers in the Supreme Court in the smelt case also would result in improvements in the ESA regulations for those other aquatic species. Finally, it is indisputable that, over these last several years of drought, the smelt-inspired water pumping restrictions have resulted in the loss of hundreds of thousands of acre-feet of water.
Update: You can now watch the archived video online at CSPAN’s website.
I’m in Philadelphia today, speaking at the National Constitution Center’s Bill of Rights Day Book Festival, about my latest book, The Conscience of The Constitution. I’ll be joined by Prof. Kermit Roosevelt and Jeffrey Rosen, the Constitution Center’s President. CSPAN-1 will be covering the event live, and will re-air it on Saturday, Dec. 27.
Property Rights — California Coastal Commission
The California Coastal Commission has never been happy with our 1987 victory in Nollan v. California Coastal Commission where the United States Supreme Court held that its practice of demanding exactions in exchange for development permits to be “an out-and-out plan of extortion.” For years, commission staff gave speeches blasting PLF and the Court for destroying the “commutarian spirit” of the State. And, whenever possible, the Commission tries to ignore or sidestep the ruling, hoping that landowners will often just give up and give in, rather than fight. Thus in Lynch v. California Coastal Commission the Commission demanded that in exchange for a permit to rebuild a storm-shattered seawall, the owners had to agree to tear the wall down in 20 years – or obtain a new permit. And in exchange for rebuilding a private stairway across private property to the beach, the owners had to agree to open up the stairs to the public. After a divided lower court upheld these conditions, the California Supreme Court this week granted review. For more, see our blog post here.
Property Rights — And a property in our rights — but not in the 11th Circuit Continue reading
Ronald Dummitt worked aboard Navy ships in the boiler rooms for two decades, during which time he was exposed to asbestos dust during the maintenance of valves and gaskets, some of which were insulated with asbestos-containing materials. Crane Co. manufactured some of the valves on which Dummit worked, none of which containing any asbestos whatsoever. The valves were, in fact, bare metal. Thirty years after leaving the Navy, Dummitt contracted mesothelioma. He sued Crane Co., and 67 other defendants, 65 of whom settled before trial and one of whom settled after trial. Although Dummit worked with at least 20 other manufacturers’ equipment used with or containing asbestos, a jury found Crane 99% at fault for Dummitt’s illness and awarded him $32 million in non-economic damages, reduced to $8 million by the court. The appellate division affirmed, holding that the only way Crane—again, a manufacturer of a safe, non-asbestos-containing product—could avoid liability is if it had, against all industry practices of decades past, recommended non-asbestos insulation of its valves. For its failure to depart from the then-best practices in the industry, the court held that Crane acted recklessly, and had a duty to warn Dummit about the dangers of asbestos. The case is now before the New York Court of Appeals, the state’s highest court.
This week, Pacific Legal Foundation submitted an amicus brief in support of Crane Co. that addresses the policy implications of imposing on a manufacturer a duty to warn against dangers presented by other products that might be expected to be used in tandem with the manufacturer’s own product, which in itself presents no danger of harm. While it is entirely consistent with New York tort doctrines that manufacturers have a duty to warn about maintenance procedures regarding their own products, New York state courts have never held that manufacturers have a duty to warn about dangers of other products manufactured by other companies that, when disturbed in general maintenance procedures, result in potential hazards.
PLF’s brief identifies several important public policies that justify line-drawing when it comes to imposition of a duty. There was nothing about the maintenance of the pumps, valves, and turbines themselves that necessitated a warning about its safety. It was only because the insulation for the machinery the Navy chose to use was asbestos insulation, that Dummit was exposed to asbestos fibers. Under any theory by which a manufacturer of a safe product has a duty to warn of dangers inherent in the manufacture of other products, the potential liability is limitless. Saucepan manufacturers will have to warn of the dangers of grease fires. Jelly manufacturers will have to warn of the danger of peanut allergies. Manufacturers of champagne flutes would be required to warn their ultimate users that consuming alcohol can be dangerous, particularly when combined with the use of other products, such as automobiles. In this case, the Navy as the employer had a duty to warn its employees of the hazards of asbestos, and the manufacturers of the asbestos-containing insulation had a duty to warn the Navy, but there was no relationship between Dummit and Crane that can justify imposing a duty on Crane to warn Dummit of the dangers of asbestos-containing insulation that it did not manufacture, distribute, or install.