Vosse v. City of New York, 2015 WL 7280226 (S.D.N.Y.) was a First Amendment suit by an apartment dweller against the City and its Building Commissioner over an illuminated peace symbol on the exterior of Plaintiff’s 17th floor apartment. Illuminated signs were prohibited more than 40 feet from the ground in the applicable zoning district, but the regulations made an exception for “flags, banners or pennants” on certain religious, philanthropic or community structures. Plaintiff contended the regulation was content-based and thus unconstitutional. The trial court granted summary judgment, finding that Plaintiff lacked standing. The Second Circuit first affirmed, then reconsidered the case in the light of Plaintiff’s alternative argument that assumed standing for an alternative contention that, even if content-neutral, the regulation was not a reasonable time, place and manner restriction.
Last month, President Obama’s EPA finalized the agency’s Clean Power Plan, the regulatory initiative to establish first-time restrictions on greenhouse gas (carbon dioxide – CO2) emissions from existing fossil-fueled power plants. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662 (October 23, 2015). As expected, a number of court challenges were filed the same day (although EPA Administrator Gina McCarthy signed the Clean Power Plan on August 3rd, Federal Register publication on October 23rd was the trigger for seeking judicial review).
For the past nine years, Thornburgh Resort Company, LLC and its successor Loyal Land, LLC have attempted to site a destination resort on 2,000 acres in Deschutes County. Ms. Annunziata Gould has continually challenged this effort. The latest challenge, Gould v. Deschutes County (Gould X), may have been the last, for the Oregon Court of Appeals latest decision identified some significant boundaries to the deference that it and LUBA must give to local government interpretations of their own plan and land use regulations. A little background is necessary.
When Barack Obama was a law student at Harvard University, his constitutional law professor was Lawrence Tribe. A distinguished legal scholar and teacher, Professor Tribe has also been counsel in a number of high profile cases such as Bush v. Gore (Tribe represented former Vice President Al Gore). President Obama and his former professor appear to have maintained a cordial relationship (e.g., Tribe has described the President as “the best student I ever had” and he served as a judicial adviser to Mr. Obama’s 2008 presidential campaign; in addition, during President Obama’s first term Tribe was “Senior Counselor for Access to Justice” in the Department of Justice). Despite his apparent goodwill toward the President, last month Tribe filed rulemaking comments suggesting that the U.S. Environmental Protection Agency should scuttle its proposal to establish first-time restrictions on greenhouse gas (carbon dioxide - CO2) emissions from existing coal-fired power plants. EPA’s proposal, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg 34830 (June 18, 2014), which is often referred to as the Obama Administration’s “Clean Power Plan,” is intended to reduce CO2 emissions from the electric power sector by 30% through various means including shifting a significant portion of coal-fired generation to natural gas and increased reliance on renewable energy. Tribe’s comments, filed on December 1st in conjunction with Peabody Coal Company, take direct aim at the Clean Power Plan as a “remarkable example of executive overreach” that violates the Constitution’s bedrock principle of “separation of powers” (“separation of powers” is an important aspect of the curriculum for constitutional law, and one could conclude from Mr. Tribe’s comments that he must think his former student missed class on those days!).
Attempts at humor aside, Professor Tribe’s comments have received considerable attention. Among other things, he argues that the Clean Power Plan’s downgrading of coal-fired electricity contradicts many decades of federal government encouragement of – and financial support for – producing electricity from coal, and results in an unconstitutional “taking” of private property. That argument seems questionable (a “taking” in the regulatory context assumes that the government action at issue deprives the injured party’s property of essentially all value, which is not the case here). In addition, Tribe challenges EPA’s interpretation of the statute that is the underlying legal basis for the Clean Power Plan, section 111(d) of the Clean Air Act. This relates to the fact that when section 111(d) was modified as part of the Clean Air Act Amendments of 1990, the Senate and House each approved different and somewhat conflicting versions of the statute. Although the conflict should have been addressed in a House-Senate conference, that did not happen. Instead, the legislation signed by President George H.W. Bush and recorded in the U.S. Statutes at Large included the two different versions of section 111(d). In the Clean Power Plan EPA refers to the conflict as an ambiguity that the agency reconciles by interpreting section 111(d) in a manner that authorizes EPA to regulate CO2 emissions from existing power plants and other industrial sources. Professor Tribe, on the other hand, says there is no ambiguity and he treats the House version of section 111(d) – which would not authorize EPA regulation of power plants’ CO2 emissions – as controlling. He adds that even if there is an ambiguity, EPA’s attempt to reconcile the two provisions violates separation of powers because “choos[ing] which of two competing versions of a statute . . . to make legally operative” is “the exclusive responsibility of the legislature.”
While Professor Tribe’s role in challenging the Clean Power Plan initiative by his former student is an interesting irony, the more important point is the virtual certainty that the Clean Power Plan will be challenged in court. The Clean Power Plan is widely acknowledged by stakeholders across the spectrum (industry, state and local government, environmental organizations, etc.) as one of the most far reaching proposals in EPA’s 45-year history, and how courts interpret section 111(d) (which will include interpretive questions beyond those noted here) will be very important to the Clean Power Plan’s success or failure. If President Obama’s CO2 reduction initiative is upheld, it is likely to be the President’s signature environmental achievement. EPA is expected to take final action on the Clean Power Plan by mid-summer.
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