July 7, 2015: The Southeastern Legal Foundation today announced that it has reached a settlement in the federal court case involving Douglas County, Georgia voter Bundy Cobb, who was wearing his NRA Instructor hat when voting in the 2014 general elections, and was ordered to remove his hat or he would be refused a ballot. See details below - how the Georgia Attorney General issued a powerful Opinion in defense of Mr. Cobb's constitutional interpretation of the Georgia electioneering law, how the County Board of Elections and Registration changed its policy giving elections officers and poll workers wide discretion that resulted in this error, and how the same government agency formally apologized to Mr. Cobb for the violations of his rights when he attempted to vote.
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June 22, 2015: The U.S. Supreme Court today ruled in favor of raisin growers, holding that crops turned over to the government in a New Deal-era scheme to keep prices artificially high is a violation of constitutional property rights and entitles the growers to "just compensation" for the crops turned over to the government. Horne, et al. v. Department of Agriculture, No. 14-275.
Southeastern Legal Foundation joined CATO Institute, National Federation of Independent Business, Center for Constitutional Jurisprudence, Institute for Justice, and Reason Foundation in filing an amicus curiae brief on the merits to the Supreme Court Marvin and Lena Horne and California raisin growers seeking review of the Ninth Circuit Court of Appeals outrage – allowing the U.S. Department of Agriculture to pay nothing for crops mandated to be turned over to them under a New Deal-era law. In 2013, the Supreme Court unanimously rebuffed the government’s attempt against the Hornes and California raisin growers to make property owners sue twice - once in federal district court and once in the Court of Claims – to vindicate property rights.
In a 5-4 decision, the Supreme Court held that the scheme forcing growers to turn over the fruits of their labor with no hope of recovering expenses or, in some cases, any compensation at all, is unconstitutional.
"This is a major blow to the government's program of boosting prices by keeping crops off the market, and a major victory for agriculture in America," said Shannon Goessling, SLF executive director and chief legal counsel. "The high court has determined that government market-fixing through mandates to turn over crops grown is a denial of fundamental property rights entitling the growers to just compensation."
SLF submitted its amicus brief in this case on March 9, 2015 (see this website for more details).
June 12, 2015: Southeastern Legal Foundation filed a Petition for Review with the U.S. Court of Appeals for the District of Columbia requesting review of final action taken by the U.S. Environmental Protection Agency published into the Federal Register today. The published Rule is a continuation of the greenhouse gas emissions regulatory scheme struck down by the U.S. Supreme Court as “defective” in 2014.
The EPA’s Rule is titled, “State Implementation Plans’ Response to Petition for Rulemaking; Restatement Update of EPA’s SSM Policy Applicable to SIP’s; . . . and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction,” Final Rule.
SLF filed formal Public Comments on May 10, 2013 and November 6, 2014 calling on EPA to withdraw the Proposed SIP Calls because of “substantive and procedural flaws due in large measure to the agency’s “sue and settle” rulemaking that was undertaken in this case. EPA did not follow appropriate rulemaking procedures rendering the Proposed SIP Calls arbitrary and capricious, an abuse of discretion, beyond the agency’s statutory and Constitutional limits, and otherwise contrary to law.”
Further, SLF alleged that, despite decades-long practical regulatory framework in the vast majority of states for addressing startup, shutdown, and malfunction (SSM) events for stationary sources that recognized that emissions levels would exceed normal emissions levels during these occasional events, something else far more sinister has been afoot.
As SLF points out in its November 6, 2014 comments, “In June 2011, Sierra Club submitted a Petition for Rulemaking asking EPA to essentially wipe out these SSM provisions and longstanding regulatory practice. Then, hardly a month later, EPA committed itself in a settlement agreement in unrelated litigation with Sierra Club and WildEarth Guardians to take action on the Petition.”
“This pattern, now all-too-well established during the Obama administration, is called ‘sue and settle’ – essentially a tacit agreement between radical environmental groups and their allies in the EPA to tackle controversial new regulations as a means to defer or settle litigation,” said Shannon L. Goessling, SLF executive director and chief legal counsel. “This represents the very worst kind of executive fiat – coercive and harsh regulations enacted in defiance of decades of well-established regulatory practice in order to achieve the ends of radical environmentalists – all in violation of clearly established executive limits and outside of Congressional authority under existing statutes.”
“We intend to challenge this unconstitutional ‘inside baseball’ and expose ‘sue-and-settle’ for what it is – behavior intended to achieve unaccountable policy aims that are outside due process and regulatory deliberation that are designed to protect all Americans from arbitrary and capricious unilateral executive overreach,” Goessling added.
Click here for SLF Court Filing
Click here for New EPA SSM Rule
Click here for SLF Formal Comments during 2013-2014 EPA Rulemaking
June 1, 2015: The U.S. Court of Appeals for the District of Columbia today ordered the U.S. Environmental Protection Agency (EPA) to file a response within 15 days to the Petition filed last week by Southeastern Legal Foundation (SLF) and various parties for Rehearing En Banc seeking reconsideration of the court’s decision on remand from the 2014 U.S. Supreme Court decision holding that the EPA’s greenhouse gas rules were “defective.” Utility Air Regulatory Group, et al. v. EPA, 134 S.Ct. 2427 (2014).
The Court of Appeals ordered, “Upon consideration of petitioners’ petition for rehearing en banc filed in the above-captioned cases, it is ORDERED, on the court’s own motion, that, within 15 days of the date of this order, respondent EPA file a response to the petition for rehearing en banc, not to exceed 15 pages. Absent further order of the court, the court will not accept a reply to the response.” Coalition for Responsible Regulation, Inc. et al. v. Environmental Protection Agency, Nos. 09-1322, 10-1073, 10-1092.
“Today’s order mirrors a similar order in the greenhouse gas case ruled on last year by the Supreme Court – that the EPA should respond to ensure the Court of Appeals has a complete record to consider,” said Shannon Goessling, SLF executive director and chief legal counsel, representing nearly two dozen companies and associations.
SLF Files Petition for Rehearing on Supreme Court Remand: EPA Greenhouse Gas Rules "Defective" May 27, 2015
May 27, 2015: Southeastern Legal Foundation today filed a Petition for Rehearing and Rehearing En Banc in the U.S. Court of Appeals for the District of Columbia seeking reconsideration of its decision following the U.S. Supreme Court blockbuster decision holding the U.S. Environmental Protection Agency (EPA) greenhouse gas rules were defective for substantive reasons. Coalition for Responsible Regulation, Inc., et al. v. EPA, Nos. 09-1322, 10-1073, 10-1092.
The U.S. Supreme Court decision is Utility Air Regulatory Group, et al. v. EPA, 134 S.Ct. 2427 (2014).
On remand from the Supreme Court, the U.S. Court of Appeals for the District of Columbia later remanded the greenhouse gas rules back to EPA without vacating the rules, instructing EPA to “consider whether any further revisions to its regulations are appropriate in light of [the Supreme Court decision].”
The Coalition for Responsible Regulation, Inc., Southeastern Legal Foundation, Landmark Legal Foundation, and the Competitive Enterprise Institute joined in the petition.
“The Supreme Court’s 2014 decision on EPA’s greenhouse gas rules is clear – the rules are substantively defective under the Clean Air Act,” said Shannon L. Goessling, executive director and chief legal counsel for Southeastern Legal Foundation, which represented nearly two dozen plaintiff companies and organizations challenging the EPA’s so-called “climate change” rules.
“The exceptional importance of the EPA’s rules and the strong decision by the Supreme Court in this matter require more than permission from the Court to EPA to change the rules if it sees fit,” Goessling added. “The amended judgment also runs counter to case precedent in the U.S. Court of Appeals for the District of Columbia that requires that remanded cases secure and maintain uniformity with the Supreme Court decisions. That clearly has not happened here.”
April 22, 2015: In a 5-4 decision, the United States Supreme Court today upheld "equitable tolling" of the 2-year statute of limitations requiring claims to be brought before a government agency for administrative review. United States v. Wong, No. 13-1074, United States v. June, No. 13-1075.
"The decision affirms the common sense rule that will prevent plaintiffs rushing to present undeveloped and in many cases baseless administrative claims," said Shannon L. Goessling, SLF executive director and chief legal counsel. "By affirming equitable tolling, the decision puts the government in the same position as similarly situated private defendants and helps to make the administrative and judicial review process more predictable for all parties, which is a win-win for those concerned with challenging alleged government overreach."
Southeastern Legal Foundation filed an amicus brief in support of a private plaintiff who had failed to file her complaint within the two-year limitation, claiming that key facts supporting her case were concealed by the government in a tragedy involving the death of a minor in a car accident and the subsequent investigation into the crashworthiness of a median barrier. If the two-year statute of limitations had not been affirmed as equitably tolled to allow her to obtain the necessary information, her challenge would not have been fully developed factually to enable the case to move forward.
Bundy Cobb v. Douglas County, State of Georgia, et al., Civil Action File No. 1:14-cv-03898-CAP
April 16, 2015
Statement by Shannon L. Goessling, executive director and chief legal counsel, Southeastern Legal Foundation:
“Today’s decisions by U.S. District Court Judge Pannell allow Mr. Cobb to amend his complaint in light of new information and facts since the original filing, which results in a dismissal of the defendants’ motion for judgment on the pleadings as moot. The defendants will be able to re-file the same motion within 21 days as it relates to the amended complaint if they choose.
We applaud the decision to move this case forward, given the serious constitutional implications of the government's actions – enforcement by a government poll worker of a custom, policy, or practice instituted by the County Elections Supervisor that prevents Douglas County, Georgia voters from voting unless they remove hats or items of clothing that have the NRA logo on them.”
Appeal to Supreme Court: UT-Austin Continues to Discriminate in School Admissions, Despite 2013 Court Ruling, March 16, 2015
March 16, 2015: So-called "classroom diversity" at the University of Texas at Austin comes under fire - again - as Abigail Fisher challenges the failed policies for school admissions and the school's disregard for the ruling by the U.S. Supreme Court, which mandated that the university must try race-neutral alternatives in place of race-based admissions. SLF files an amicus brief in support of Fisher, as it did in 2012, arguing that UT-Austin did not prove race-based program was necessary and narrowly tailored to meet diversity goals after the 2013 Supreme Court decision. Fisher v. UT-Austin, et al.
Supreme Court Agrees to Hear "Raisins" Property Rights Case - SLF Files Amicus Brief on Merits, March 9, 2015
March 9, 2015: The U.S. Supreme Court has decided to hear the merits and arguments of the now-famous “raisins” case, as Southeastern Legal Foundation joins CATO Institute, National Federation of Independent Business, Center for Constitutional Jurisprudence, Institute for Justice, and Reason Foundation in filing an amicus curiae brief on the merits to the Supreme Court Marvin and Lena Horne and California raisin growers seeking review of the Ninth Circuit Court of Appeals outrage – allowing the U.S. Department of Agriculture to pay nothing for crops mandated to be turned over to them under a New Deal-era law. In 2013, the Supreme Court unanimously rebuffed the government’s attempt against the Hornes and California raisin growers to make property owners sue twice - once in federal district court and once in the Court of Claims – to vindicate property rights. Now, the Hornes are back in court, challenging the Ninth Circuit’s ruling that upheld the government scheme forcing growers to fork over the fruits of their labor with no hope of covering their expenses or, in some cases, any compensation at all. This critical case raises fundamental constitutional issues of just compensation for government “takings” of personal and real property.
March 6, 2015: Southeastern Legal Foundation today filed an amicus curiae brief in the Supreme Court of the United States in a Texas case challenging alleged voter dilution in the drawing of Texas Senate districts that ostensibly complied with sections of the Voting Rights Act but are, as SLF argues, a violation of Fourteenth Amendment based on the fact that Texas "equalized" voting districts based on overall population and not on voter-eligible population. Evenwel, et al. v. Abbott, et al., No. 14-940.