D.C. Circuit Denies Challenge to FERC’s Decision to License Cove Point LNG Export Facility

On July 15th, the D.C. Circuit issued a decision in EarthReports, Inc. (DBA Patuxent Riverkeepers), Sierra Club, and Chesapeake Climate Action Network v. FERC, No. 15-1127. Plaintiffs in this case challenged the Federal Energy Regulatory Commission’s (FERC) 2014 authorization of conversion of the Cove Point liquid natural gas plant from an import to an export facility after the agency prepared only an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI). Plaintiffs alleged that FERC’s decision to approve the conversion  without conducting a full analysis of the project’s environmental impacts violated the agency’s National Environmental Policy Act (NEPA) obligations.  IPR filed an amicus brief on behalf of a coalition of environmental organizations and community groups in support of the plaintiffs’ challenge to FERC’s decision.  IPR’s brief focused in particular on the dramatic ways in which communities and the environment upstream of the project will be injured as a result of natural gas drilling in the Marcellus shale play induced by the increased export capacity at the Cove Point facility.  The brief, more fully described here, highlighted several issues with FERC’s NEPA analysis, including its failure to consider these indirect impacts of increased export capacity, as well as its lack of consideration of the cumulative impacts of the project and the intensity of those impacts for the Chesapeake Bay.

Unfortunately, the Court’s recent decision denied the petition for review on all grounds.  With regard to the sufficiency of the EA as to the indirect effects of induced natural gas drilling, the Court relied on the reasoning set out in its recent opinion in Sierra Club v. FERC (Freeport), No. 14-1275.  In short, the Court found that NEPA does not require FERC to consider indirect effects of increased natural gas production, including climate impacts, where such impacts are attributable to a rise in LNG exports.  The Court held that the Department of Energy (DOE) is responsible for the final determination as to whether such exports will occur, and that FERC is therefore not the “legally relevant cause” of indirect effects of LNG production caused by export-induced demand.  In consequence, under Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), FERC was not required to consider these effects in its NEPA analysis.

The Court also found that FERC gave sufficient consideration to environmental petitioners’ other claims regarding the EA, including the impacts of ballast water on water quality, maritime traffic on the North Atlantic right whale, and the Cove Point facility’s operations on public safety.  Finally, it held the arguments in the amicus brief other than indirect effects were not properly raised by plaintiffs and were therefore not before the Court.  The Court did, however, explicitly leave open the possibility of future challenges to DOE’s NEPA review of its export decisions based on indirect impacts of fracking.

Left undecided was a challenge by BP to FERC’s contract with Dominion regarding the Cove Point facility.  That case, No. 15-1205, was previously consolidated with No. 15-1127.  At the time of its July 15 decision, however, the Court ordered the two cases unconsolidated, and it has not yet issued an opinion in the contract dispute.

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Tushnet Documents

Combined April 2016 Release (1 of 2)

Combined April 2016 Release (2 of 2)

2015-ICLI-00027 – Color Release

Combined March 2016 release

Combined June 2016 Release and Rerelease

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IPR Files Amicus Brief in Support of EPA’s Clean Power Plan on Behalf of Public Health Coalition

On April 1, the Institute for Public Representation filed an amicus brief in State of West Virginia, et al. v. EPA, 15-1363 et al., the consolidated cases in which EPA’s Clean Power Plan is being challenged in the D.C. Circuit. IPR’s brief was filed on behalf of eight national medical and public health associations: the American Thoracic Society, the American Medical Association, the American Academy of Pediatrics, the National Medical Association, the American College of Preventive Medicine, the American College of Occupational and Environmental Medicine, the National Association for Medical Direction of Respiratory Care, and the American Public Health Association.  Collectively, these public health amici represent a broad spectrum of the United States medical and public health community.

IPR’s brief describes in detail the documented negative consequences for human health of carbon emission-fueled climate change. Health impacts from climate change include, among other things, heat-related illness, respiratory and cardiovascular harm caused by declines in air quality, and increased suffering by those with asthma and other allergic symptoms as pollen seasons increase in length and magnitude.  Those impacts will have the most dramatic impact on vulnerable populations such as children, the elderly, low-income communities, and communities of color. The failure to address the carbon emissions that fuel these changes will have adverse consequences for human health.

The Clean Power Plan is EPA’s exercise of its authority under § 111(d) of the Clean Air Act to drive reductions in carbon emissions from fossil fuel-fired power plants by 32 percent over 2005 levels by 2030. State and industry petitioners have challenged the legality of the Clean Power Plan on a number of grounds, including a claim that § 111(d) does not provide the authority for EPA to regulate carbon emissions from these plants. IPR’s brief argues that the Clean Power Plan was enacted, and has been amended, specifically to address the kinds of public health concerns described above. The language of the Act should therefore be interpreted through the lens of those goals.

Georgetown Law student Hampden Macbeth (L’16) helped research and draft the brief, along with graduate teaching fellow/staff attorney Sarah Fox.

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IPR Advocacy Leads to Improved and Comprehensive Online Public File Rules

IPR, on behalf of its clients Sunlight Foundation, Campaign Legal Center, and Common Cause, has been at the forefront of the fight to increase the political advertising transparency at television stations in light of their public interest obligations. This issue has been a priority of the clinic’s clients and of the clinic’s directors, Angela Campbell and Andy Schwartzman. After many years of advocacy, we have secured a major victory for political transparency: the FCC has finally required all “public inspection files” to be uploaded online for anyone to access.

The FCC, until very recently, required these stations to maintain physical “public inspection files” at their place of business. These files include many important documents, but most important for us and our clients is the political file. The political file is where stations must disclose to the public how they sell their advertising time for political messages, including ads by candidates themselves or outside groups. These files can be freely inspected by the public. In actuality, inspecting the physical files was difficult or even impossible. Beyond traveling to the station (which could be hundreds of miles away), visitors were often met with skeptical and difficult station employees, some of whom did not even know what the public inspection file was.

public filesThe FCC has been on a long and slow trajectory to require the public inspection files to be placed online. First, in 2012, the FCC cautiously began requiring a small portion of broadcasters to upload their public files in an FCC-hosted online database. At the time, only the top-four broadcasters (NBC, CBS, ABC, Fox) in the top 50 markets had to place their files online. In summer 2013, the FCC sought comment on how that process went. Even the National Association of Broadcasters said it was “uneventful.” IPR filed comments on behalf of its client at the time, the Public Interest Public Airwaves Coalition, supporting the transition. (PIPAC also encouraged the FCC to adopt a standardized form to improve the quality and usefulness of the data.) Receiving very little pushback, the FCC extended the online public file requirement to all broadcasters.

In summer 2014, IPR filed a petition for rulemaking, on behalf of its clients Sunlight Foundation, Campaign Legal Center, and Common Cause, asking the FCC to extend this no-brainer online public file requirement to cable and satellite providers. This extension was important in part because political ads are increasingly shown on cable and satellite stations, yet escape public review because of their antiquated, paper-only public file rules. After putting our petition out for public comment in late 2014, the FCC adopted a Notice of Proposed Rulemaking that not only proposed extending the online requirement to cable and satellite providers but also to radio stations, in part because they too run political ads. Again, we filed comments in support of the extension, including to all radio stations.

We are pleased that the FCC recently adopted an Order extending the online filing requirements to cable and satellite providers and radio stations. The Order was published in the Federal Register on February 29, 2016; many of the requirements went into effect on that date.

While we gained a victory here, our political advertising fight is not over. We continue to seek changes at the FCC in three primary areas: (1) improving the quality and usefulness of the data in the online public files by encouraging the FCC to adopt a standardized form; (2) improving the adequacy of the content uploaded to the online public file; and (3) improving on-air disclosure of the “true identity” of a sponsoring Super PAC. We will continue the fight for these changes.

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Supreme Court Declines to Hear Appeal of EPA Plan for Chesapeake Bay

On February 29, 2016, the Supreme Court declined to grant certiorari in American Farm Bureau Fed., et al. v. U.S. Environmental Protection Agency. As a result, the Third Circuit’s opinion upholding EPA’s plan to set a Total Maximum Daily Load (TMDL) for point and nonpoint sources discharging into the Chesapeake Bay stands. The Court’s decision not to take this case on appeal is a victory for IPR’s clients, on behalf of whom IPR drafted an amicus brief in support of EPA in the Third Circuit.

This case arose out of EPA’s plan to clean up the Chesapeake Bay watershed, which spans 64,000 square miles and encompasses Maryland, Virginia, New York, Delaware, New Jersey, Pennsylvania, and D.C. (collectively the “Bay States”). The Chesapeake Bay has long been plagued by runoff from nutrient pollution into its many tributaries, particularly from agricultural sources. Over three decades of efforts by the Bay States, NGOs, and EPA limited the pollution that flows to the Bay from point sources. However, those efforts were insufficient to curtail pollution flowing from nonpoint sources. This lawsuit arose out of a series of cases challenging failures by EPA and particular Bay States to implement TMDLs for waters in parts of the Bay watershed. EPA finally published the Bay TMDL on December 29, 2010, which set standards how much nitrogen, phosphorus, and sediment may flow into the Bay.

The American Farm Bureau Federation, the National Association of Homebuilders, and others responded by suing in federal district court to challenge EPA’s authority to create the TMDL. The Chesapeake Bay Foundation and a group of municipal water treatment entities intervened in the case. In a 100-page opinion, the District Court rejected the Farm Bureau’s argument that the meaning of the statutory term “total maximum daily load” was clear and did not encompass the Bay TMDL issued by EPA. The Farm Bureau appealed its loss to the Third Circuit. In support of that appeal, 21 states’ attorneys general filed a brief that amplified the federalism arguments made by the Farm Bureau and that also introduced an argument based on the Tenth Amendment.

IPR was part of an amici coalition that took on petitioners’ arguments against the plan. In this coalition, IPR had the unique responsibility of highlighting the adverse impacts of nonpoint source pollution in the 21 states whose AGs filed an amicus opposing the TMDL. In the course of drafting that brief, IPR worked to gather a group of signatories that would represent all 21 states. IPR’s brief noted that both intra- and interstate approaches to nonpoint source pollution were falling short. It also included a legal argument that highlighted the statutory basis for EPA’s authority to issue the TMDL.

The end of the appeals process for the petitioners will allow the Bay TMDL plan to continue as scheduled. The plan calls for practices to be in place by 2017 to meet 60 percent of the overall nitrogen, phosphorus, and sediment reductions, and promises to be a major breakthrough in the decades-long effort to clean up the Bay. The Supreme Court’s unwillingness to take up this issue should also provide encouragement to EPA in its efforts to encourage states to implement strong TMDLs for other water bodies.

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IPR Civil Rights Report for Fall 2015

During Fall 2015, the Civil Rights Section of IPR filed four lawsuits in federal district court; continued to litigate five other cases and successfully resolved two of them; filed three amicus briefs; represented a public interest organization in third-party discovery and a worker’s center in a claw back matter; successfully resolved a client’s wage payment claim without litigation; and researched several potential voting rights matters.

We filed suit under both Title IX and common law theories on behalf of a student whose university failed to respond appropriately to the stalking and harassment she suffered at the hands of another student. We sued the Department of Veterans’ Affairs under the Administrative Procedure Act on behalf of a group of veterans seeking records that they need to apply for veteran’s benefits. We also brought a case under the Family and Medical Leave Act on behalf of a worker who took leave to care for her comatose husband and was terminated one week after beginning her leave. Finally, we filed a Section 1983 action against the DC police for seizing our client’s van and tools and continuing to hold his property for over a year even though the police had completed their search for evidence. After filing our lawsuit, we were able to secure the return of the van and tools, and the litigation continues in an effort to recover damages.

The Civil Rights section successfully resolved two cases that were in active litigation throughout the semester – one a wage theft case on behalf of an employee of a government subcontractor and the other a pregnancy discrimination case on behalf of an individual who was denied lactation breaks because she was a gestational surrogate. In the latter case, we obtained a published decision denying the defendant’s motion to dismiss and establishing that legal protections for lactating women apply regardless of surrogacy status. We continued to litigate two cases under the Freedom of Information Act, and we filed a claim in Bankruptcy Court in an effort to collect a judgment that we previously obtained for a client in a wage theft case.

The Civil Rights section of IPR also engaged in an active amicus practice. We filed two amicus briefs in the U.S. Supreme Court, one on behalf of a group of information privacy law scholars and the other on behalf of public employee union. In the Eleventh Circuit, we filed an amicus brief on behalf of two public interest groups in a case challenging the dilution of Black voting strength in Sumter County, Georgia.

Finally, IPR defended the third-party deposition of a national consumer rights organization and successfully invoked associational privilege under the First Amendment, and we represented a worker’s center in connection with an attempt by the government to claw back documents previously released to the organization. We successfully demanded money owed our client by a former employer who failed to pay wages on time, and we investigated several potential voting rights cases involving a variety of issues, including minority vote dilution under the Voting Rights Act, felon disenfranchisement, fair apportionment under the Equal Protection clause, and state compliance with the requirements of the National Voter Registration Act.

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CAPS Product Identification Guide

2015-ICLI-00027 – Color Release

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D.C. Circuit Rejects Tobacco Companies’ Challenge to Report Describing Problems with Menthol Cigarettes

On January 15th, the U.S. Court of Appeals for the D.C. Circuit overturned a district court grant of summary judgment for plaintiff tobacco companies Lorillard Tobacco and R.J. Reynolds in favor of the FDA and anti-tobacco co-defendants. This amounted to a win for IPR’s client, the American Thoracic Society (ATS). On behalf of ATS and jointly with the Campaign for Tobacco Free Kids, IPR had submitted an amicus brief in support of FDA.

The dispute centered on a report by the twelve-member Tobacco Products Scientific Advisory Committee (TPSAC)—commissioned by the FDA—concerning the safety of menthol cigarettes. The report showed similar rates of lung cancer and other diseases in menthol smokers compared to other cigarette smokers, and discussed the disproportionately high use of menthol cigarettes in young people and African Americans. The overarching recommendation of the report was hardly forceful; TPSAC merely stated that “[r]emoval of menthol cigarettes from the marketplace would benefit public health in the United States.”

Nonetheless, the tobacco companies brought suit alleging that three members of TPSAC had been unlawfully appointed in violation of conflict-of-interest statutes and regulations, essentially biasing the menthol report and leading to stricter regulation of menthol cigarettes by FDA. FDA countered with standing and merits arguments, asserting the members were not conflicted out and the menthol report was lawful.

In a July 2014 ruling, the district court agreed with the tobacco companies, and ordered TPSAC membership to be reconstituted and enjoined FDA use of the menthol report. The FDA promptly appealed to the D.C. Circuit.

In the amicus brief, IPR’s staff attorney Justin Gundlach and student attorney Nathalie Prescott laid out the policy implications of the district court’s decision. In particular, the brief discussed FDA’s extensive background dealing with conflict-of-interest laws, the judiciary’s historical deference to agency conflict determinations, and the potentially wide-reaching ramifications of highly qualified experts becoming discouraged from serving on advisory committees.

After reviewing the briefs and hearing oral argument, D.C. Circuit vacated the district court’s summary judgment decision on ripeness grounds. According to the appellate court, FDA has yet to issue a final rule on menthol cigarettes, making the tobacco companies’ claims of injury “insufficiently imminent.” Even more, FDA does not have to make a rule based on the menthol report – it only has to consider the report, along with the public comments allowed under the Administrative Procedure Act. Because FDA may well choose not to issue any rule at all, the suit is not ripe.

Because the D.C. Circuit dismissed on the basis of ripeness, it did not review the merits of the case, which were the focus of IPR’s amicus brief arguments.

Former IPR student Nathalie Prescott drafted this post.

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FERC “Demand Response” Rule Upheld

On January 25, in a 6-2 decision authored by Justice Kagan, the Supreme Court issued its opinion in the case Federal Energy Regulatory Commission (“FERC”) v. Electric Power Supply Association. The Court reversed the judgment of the Court of Appeals for the District of Columbia and upheld FERC’s Demand Response Rule (FERC Order 745). IPR had previously submitted an amicus brief to the Supreme Court in support of FERC’s Order.

Under the Order, qualified electricity customers (“demand response providers”) can receive compensation for curtailing their electricity usage.  The curtailment is bid into the wholesale electricity market, just like electricity generation itself, in order to help balance supply and demand, lower wholesale electricity prices, and reduce transmission congestion during times of peak usage.

The Court was presented with two issues, and answered both in the affirmative: (1) does the Federal Power Act permit FERC to regulate demand response transactions without impinging on the States’ exclusive authority to regulate retail sales of electricity, and, (2) if so, was FERC’s requirement that there be equal compensation for demand response providers and electricity generators in such transactions reasonable?

As previously posted on this blog, IPR’s amicus brief received mention from Justice Breyer during oral argument in October when the Justice looked for clarification on a technical aspect of the Order, the “net benefits test.”  The amicus brief, written by former IPR Teaching Fellow Justin Gundlach and economist Dr. Charles Cicchetti, served to explain the economic principles and logic underlying FERC’s decision to compensate demand response providers and electricity generators equally at the wholesale market’s clearing price.

The Court espoused many of the same points offered in IPR’s amicus brief.  Most notably, the Court explained that FERC provided a detailed explanation for its decision and responded at length to a proposal that demand response providers should be compensated below the wholesale market’s clearing price because these providers will also be reducing their electricity bills.  In accepting FERC’s decision to reject this proposal, the Court noted that it was appropriate for FERC to set a compensation level that focused on the economic value that curtailed electricity usage brings to the wholesale electricity market, instead of the costs and benefits incurred by demand response providers themselves.  And the Court acknowledged that curtailment and generation provide an equal economic value because both allow market operators to balance supply and demand, and because the “net benefits test” ensures that electricity costs, not just the market-clearing price, go down.

This post was drafted by IPR student Aaron Flyer.

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IPR Successfully Opposes Petitions for Closed Captioning Waivers

The Institute for Public Representation scored another victory for deaf and hard of hearing individuals on November 17 when the Federal Communications Commission required a programmer to provide closed captions.

The Consumer and Governmental Affairs Bureau’s order (http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db1117/DA-15-1324A1.pdf) found that Victory Temple Church in Beaumont, Texas had sufficient financial resources to pay for closed captions for its programming. Victory Temple had filed a petition with the FCC seeking a waiver of the closed captioning requirements, arguing that captioning would be economically burdensome.

Under the Communications Act and FCC rules, all programming broadcast on television must be captioned. The rules allow for exemptions to the captioning requirements, however, in various situations or if a programmer claims that captioning would be economically burdensome.

IPR’s client Telecommunications for the Deaf and Hard of Hearing, Inc. opposed the economically burdensome petition filed by Victory Temple. In February, IPR student Caleb Gilmartin and a staff attorney drafted the opposition to Victory Temple on behalf of TDI (http://apps.fcc.gov/ecfs/document/view?id=60001029479).  The National Association of the Deaf (NAD), Cerebral Palsy and Deaf Organization (CPADO), and Deaf Seniors of American (DSA) supported TDI by signing on to the opposition.

In the order issued on November 17, the FCC largely agreed with IPR’s opposition, and determined that because Victory Temple’s profits exceeded its estimated captioning costs, captioning would not be economically burdensome. As a result, Victory Temple will have to begin captioning its programming by February 16, 2016.

The decision against Victory Temple is the seventh order from the FCC this year finding that it would not be economically burdensome for particular programmers to provide closed captions.  IPR opposed all seven of these petitions on behalf of TDI.

In October, IPR opposed four additional waiver petitions on TDI’s behalf, which are now pending before the Commission.  IPR students Lindsay Buchanan and Cory Dodds, along with staff attorney Drew Simshaw, drafted the oppositions.  Joining TDI by signing onto the oppositions with support were the National Association of the Deaf (NAD), Cerebral Palsy and Deaf Organization (CPADO), Association of Late Deafened Adults (ALDA), Deaf Seniors of America (DSA), American Association of the Deaf-Blind (AADB), and California Coalition of Agencies Serving the Deaf and Hard of Hearing (CCASDHH).

In addition to opposing closed captioning waiver petitions, students this semester assisted TDI in meetings with FCC commissioners’ staffs addressing how to make user interfaces for closed captioning services more accessible to deaf and hard of hearing consumers.  The Commission addressed many of TDI’s concerns in an order released this month (http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db1120/FCC-15-156A1.pdf).

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