Op-Ed | Courting the U.S. Environment

This essay originally appeared in The Globalist and was adapted from a speech Bill Humphrey delivered to a Citizens Climate Lobby chapter meeting in Brookline MA.


Here is an interesting twist in the annals of U.S. democracy: The country’s federal and state courts are likely to set as much, if not more, of U.S. climate policies as the president, Congress, governors or state legislators.

Broadly speaking, that is because the courts, not the other branches, are the ones who make the decisions interpreting and applying state laws and regulations.

But it is also a direct reflection that the environment remains more of a politically contentious and divisive issue in the Unites States than in any other advanced economy.

All of this became glaringly clear once again in the recent, unprecedented U.S. Supreme Court order, issued shortly before Justice Scalia’s death.

The temporary decision in West Virginia v. EPA blocked implementation of President Obama’s regulations to restrict the emissions of coal-fired power plants.

The courts, now or never

The role of courts on climate policy extends well beyond coal, as the growing number of environmental and climate lawsuits winding their way through U.S. and state courts in recent years makes plain.

This includes a recent suit filed in Massachusetts alleging that the state has not met its legally mandated emissions targets.

Given this lay of the land, it is more important than ever in the United States to pay attention to judicial nominations – whether to the U.S. Supreme Court or to state supreme courts in places that do not elect judges – and assess the candidates from the perspective of their views (and hence potential impact) on global climate change. Read more

The technicality blocking Obama’s immigration order

Excerpt from a Reuters explanation of the tricky technicality forming the basis of the Federal court ruling out of Texas that blocks President Obama’s immigration executive orders from moving forward:

U.S. District Judge Andrew Hanen avoided diving into sweeping constitutional questions or tackling presidential powers head-on. Instead, he faulted Obama for not giving public notice of his plans.

The failure to do so, Hanen wrote, was a violation of the 1946 Administrative Procedure Act, which requires notice in a publication called the Federal Register as well as an opportunity for people to submit views in writing.

There’s a longer, more spelled out version further down in the article.

The other point of interest/concern in this story, not commented upon in the article, is that the lawsuit was brought by 26 state governments. As our writer Sasha examined in an article in December 2014, Republican State Attorneys General have been repeatedly acting in concert to file coordinated, mass lawsuits against the Obama Administration on every conceivable issue. Executive orders and actions have been a particularly favored target.

I don’t know exactly which states are involved in this particular, but I’m betting it’s most (if not all) of the states with Republican Attorneys General (since they control about that many at the moment).

US-Mexico border fence at Tijuana and San Diego by the Pacific Ocean. (Credit: JamesReyes)

US-Mexico border fence at Tijuana and San Diego by the Pacific Ocean. (Credit: JamesReyes)

Are state tax caps unconstitutional?

flag-of-coloradoIn a push-back against the tyranny of conservative tax caps that prevent some state and local tax increases except by referendum, activists and some legislators in Colorado are trying to persuade the courts to hear a case that says these restrictions are Federally unconstitutional.

Why? Because of the U.S. Constitution’s slightly vague requirement that state governments be “republican” in nature (i.e. ruled by representatives instead of the people directly) and that the Federal government must ensure compliance:

Article 4. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government…

This clause has generally only come up as a formality when Congress has to admit a new state to the union. In the past, the Federal courts have refused to hear cases on this issue of what is or isn’t a “republican” form of government in the states, since most of the disputes are openly political fights between rival state camps rather than legitimate constitutional cases.

But they seem to have taken an interest over the extreme case where Colorado legislators have been legally powerless to raise any taxes whatsoever without the consent of a popular referendum, for over two decades.

Unlike California where many — but not all — taxes end up going to ballot, or other states where legislators can only raise taxes by a certain fixed percentage every year without a ballot question, Colorado’s constitution completely removes that power from its legislature — and even the local governments — and hands it over to the voters.

…no unit of government, from the legislature to local boards, can raise taxes or approve a new tax without a vote of the people. In addition, if existing taxes bring in revenue greater than “inflation plus the percentage change in state population” for the year previous, that “surplus” must be refunded to the taxpayers. In short, TABOR froze state government in its existing shape as of 1992, and left the legislature to flounder helplessly.

  Read more

Marriage equality comes to Utah (for now)

It’s been a good week for marriage equality. On Thursday, New Mexico’s state supreme court delivered a unanimous opinion in favor of marriage equality statewide — not a big surprise given that half the population was already living in counties issuing same-sex licenses due to the lack of a law one way or the other. Then, on Friday, neighboring Utah got a big surprise when a Federal district judge ruled that their 2004 State Constitutional Amendment against same-sex relationship recognition was unconstitutional.

This is the first Federal decision at any level on the issue since the Proposition 8 and DOMA rulings were handed down this year. You should read this excellent analysis of the judge’s very thorough case opinion. (It’s really too bad it’s a lower court opinion that can’t be applied anywhere else directly because it would be great material for a precedent decision higher up. Maybe it will get cited higher up.)

Over a hundred same-sex couples immediately rushed to get licenses on the first day (photos here), with more following in the days after. The state government sought emergency stays from the 10th circuit appeals court, which initially rejected it on the grounds that the initial ruling judge at the district level had to consider a stay first. So same-sex marriages continued in Utah throughout the weekend until he formally rejected the request for a stay.

In the absence of a compelling public interest against allowing marriages to proceed — unsurprising given that they are already in progress in nearby California, New Mexico, Washington and over a dozen other states — the Tenth Circuit followed the district’s lead and by Tuesday had denied a stay three times since Friday. For the state government, that means they’re running out of road fast on blocking this from going into effect during the lengthy appeals process.

The de facto result is that same-sex marriages will continue in Utah until either stayed by the U.S. Supreme Court or until the circuit court actually hears the appeal and then overturns the district court ruling, if that is how it rules.

So what are the chances of either of those happening? The former is pretty unlikely. Liberal Obama-appointee Justice Sotomayor has control over emergency stay requests coming from the 10th circuit. She might choose to refer it to the other justices to prevent a re-application to a different justice, which would inevitably follow a unilateral denial. But even if she does, a majority of the court would have to be persuaded that halting same-sex marriage during the appeals process is an emergency (which is probably unlikely, given that 5 justices didn’t find a reason to block it in the Prop 8 cases or DOMA cases earlier this year, even if they weren’t directly ruling on this broader issue).

As for the possibility of the 10th circuit reversing the lower court ruling after denying a stay, that’s harder to predict. I’m certainly not a court expert, but my guess is that the circuit court level ruling could go either way. I’m not sure of the 10th circuit‘s ideological composition, but I believe it leans conservative, even though half of the active seats were filled by Democratic Presidents due to institutional reasons that favor conservative nominees for Federal seats in states with conservative senators.

Plus, I think the way it works is that it’s a pool of potential judges and there’s no way to know whether the same people who denied a stay get pulled to hear the actual case. Thus, it’s entirely possible that the circuit court will find in favor of the state down the road — although existing marriages would likely remain valid. But that decision is probably a year or two away.

So from here, it gets pretty murky. Remember that it took over four and a half years to get a final decision from the Supreme Court on the legal standing of the Proposition 8 proponents, let alone its constitutionality (which they never actually ruled on). There are also other Federal court challenges pending in other states against their constitutional amendments and related laws. Already, on Monday, another Federal case resulted in a ruling that Ohio must accept valid same-sex marriages performed in other states. Nevertheless, this Utah decision is an important milestone, and there are probably a lot of very happy families right now getting the recognition they deserve. That now state of affairs seems likely to continue during the appeals process.

AFD Ep 36 – Progress Small and Large

Posted: Tues, 29 Jan 2013
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Description: Bill updates us on the Senate rules reform, discusses a strange Federal Appeals Court decision, talks to guest commentator Sasha about women in combat, covers a proposal to change the Electoral College to help Republicans, looks at protests in Egypt, discusses the tragic loss of the Timbuktu libraries this week, and previews the coming immigration reform battle in Congress.