California’s role on emissions regulation, redistricting and campaign contributions
RELIST WATCH
On the Supreme Court’s Monday order list, it didn’t do a lot to clear out relisted cases. The court refused review of only one of the 15 cases that were pending at the time: Davis v. Colorado. This case asked whether the Sixth Amendment guaranteed indigent defendants a right to continue representation by their appointed counsel. The Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York case is one of six newly relisted cases that will be discussed at the Friday conference. It involves the same question already under consideration in one of last week’s returning relists, G-Max Management, Inc. v. New York: whether New York rent stabilization laws constitute an uncompensated taking of private property in violation of the takings clause of the Fifth Amendment.
Because it’s election season, we’ll begin the unfamiliar relists with the cases that have a political valence.
In November 2020, Alaska voters approved the initiative known as “Ballot measure 2,” regarding campaign expenditures and advertising. Alaska voters approved the initiative known as “Ballot measure 2” regarding campaign expenditures and advertising in November 2020. These disclosures are required, even though the groups receiving donations are required to report contributions separately. The second provision requires disclosures on political advertising. It details the individual or entity that paid for the ad, along with the city, state, and country of the funder, as well as names, cities, and states of residence of three of the largest contributors. If the entity received most of its contributions from outside Alaska, another provision requires that the advertisement say so in all capital letters for the entire duration of the advertisement.
A group of individuals and independent expenditure committees sued to challenge the constitutionality of those provisions. The U.S. District Court for the District of Alaska refused their request for a preliminarily injunction that would have prevented the law from taking effect. The U.S. Court of Appeals, 9th Circuit, affirmed this denial. However Judge Danielle Forrest stated separately that she believed their challenge to duplicative disclosure was likely to be successful. In Smith v. Stillie, the challengers now seek Supreme Court review.
Louisiana v. Callais and Robinson v. Callais involve challenges to Louisiana’s congressional redistricting scheme. Louisiana has suffered several losses in its attempts to defend the 2022 congressional redistricting scheme against challenges under Section 2, which prohibits voting practices, standards, or procedures resulting in a denial of or abridgement to the right to vote based on race or color. The state chose S.B. 8 over other plans that satisfied Section 2 in part because it protected incumbents and hurt a political opponent of the state governor, Jeff Landry. A divided three-judge District Court majority ruled that race was the dominant factor in the design of S.B. 8’s congressional district. Louisiana was prohibited from using the redistricting plan created by S.B. The Supreme Court granted a stay to allow the S.B. 8 redistricting map to take effect while the appeal is being resolved. The court granted the stay in May citing the Purcell Principle – the idea courts shouldn’t make changes too close before an election. The three Democratic appointees of the court would have rejected the request for a delay, with Justice Ketanji Brown Jackson saying that “Purcell had no role to play” in this case. “There is little confusion,” she argued, referring to the new redistricting plan that will be implemented in a few short weeks. The Supreme Court can decide whether to hear cases that are brought to it by petitions for certiorari. However, election cases such as this one must be heard by the court, and it is not able to do so if it does not receive a petition for certiorari. The Clean Air Act’s Section 209(a), which generally prohibits states from adopting emissions standards for new vehicles, is a general preemption. The EPA must first determine that California “needs
” its own emission standards to “meet compelling and extraordinary conditions.” Before granting California a preemption waiver, the EPA must find that California “need
” its own emission standards “to meet compelling and extraordinary conditions.”
Beginning in 2009, California began seeking to set standards to curb greenhouse gas emissions – which, unlike the sorts of emissions it had previously regulated under Section 209(b), had global effects rather than principally local ones. The EPA issued a waiver allowing California to regulate such emissions in 2013, which the EPA partially withdrew in 2019 under the Trump administration, and then reinstated in 2022 under the Biden administration.
The 2022 waiver, allowing California to set its own standards for greenhouse-gas emissions and to adopt a zero-emission-vehicle mandate, expressly intended to address global climate change by reducing California vehicles’ consumption of liquid fuel. Fuel producers challenged the EPA waiver, claiming that it was contrary to Section 209(b). The U.S. Court of Appeals, District of Columbia Circuit, rejected the challenge because the challengers lacked standing – a legal right of action. The court of appeals ruled that the fuel producers failed to establish that rescinding the EPA’s waiver will actually remedy their injuries. The D.C. Circuit erred by holding that the fuel producers lacked standing in order to challenge waiver. The fuel producers also argue that EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero-emission-vehicle mandate is unlawful.
Similarly, Ohio and 16 other states have filed a separate petition arguing that by granting only California eligibility for an exemption from federal preemption, Congress violated the Constitution. Tune in next time!
New Relists
Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York, 23-1220
Issue:
Whether the changes made by New York’s Housing Stability Act result in physical takings or as applied takings that violate both the due process clauses of the Constitution.[s](Relisted after the Oct. 11 conference. Tune in next time!
New Relists
Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York, 23-1220
Issue:
Whether the changes made by New York’s Housing Stability and Tenant Protection Act effect physical takings, and as applied takings, and violate both the due process and contract clauses of the Constitution.
(Relisted after the Oct. 11 conference. )
Smith v. Stillie, 23-1316
Issues:
(1) Whether Alaska’s requirement that individual donors must file duplicative reports of their political contributions within 24 hours of making them violates the First Amendment; and (2) whether Alaska’s extensive on-ad disclosure requirements violate the First Amendment.(Relisted after the Oct. 11 conference. )
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues:
(1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.(Relisted after the Oct. 11 conference.)
Ohio v. Environmental Protection Agency, 24-13
Issue:
Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.(Relisted after the Oct. 11 conference.)
Louisiana v. Callais, 24-109
Issues:
(1) Whether the majority of the three-judge district court in this case erred in finding that race predominated in the Louisiana legislature’s enactment of S.B. The issues: (1) Whether the majority of the three-judge district court in this case erred when it found that race predominated in Louisiana’s legislature’s enactment of S.B. The majority should have subjected S.B. 8 to the preconditions specified in Thornburg v. Gingles; and (4) whether this action is non-justiciable.
(Relisted after the Oct. 11 conference. )
Robinson v. Callais, 24-110
Issues: (1) Whether the three-judge district court erred in concluding that race predominated in the design of Louisiana’s Congressional District 6 based on the state legislature’s stated intent to comply with the rulings of Robinson v. Ardoin without presuming the good faith of the legislature, attempting to disentangle the legislature’s racial and political considerations, or requiring an alternative map that satisfied both Section 2 of the Voting Rights Act and the legislature’s political objectives, as required by Alexander v. S.C. State Conf. The issues are:
(1) Whether the three-judge district court made an error in concluding that race predominated in the design of Louisiana’s Congressional District 6 based on the state legislature’s stated intent to comply with the rulings in Robinson v. Ardoin without presuming the good faith of the legislature, attempting to disentangle the legislator’s racial and political considerations, or requiring an alternative map that satisfied both Section 2 of Voting Rights Act and the legislative The district court erred in relying on extrarecord evidence and ignoring the evidence in the record regarding S.B. 8 failed to satisfy strict scrutiny; and (5) whether the district court abused its discretion by unnecessarily expediting the proceedings and limiting the evidence presented in this complex, fact-intensive case.
(Relisted after the Oct. 11 conference. )
Returning RelistsHamm v. Smith, 23-167
Issues:
(1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(Relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, March. 1, March. 15, March. 22, March. 28, April. 12, April. 19, April. 26 May 9, May 16, Can 23, Can 30, June 6, June 13 and June 20, July 1 conferences. )
Oklahoma v. Environmental Protection Agency, 23-1067Issue
: Whether a final action by the EPA taken pursuant to its Clean Air Act authority with respect to a single state or region may be challenged only in the D.C. Circuit because the agency published the action in the same Federal Register notice as actions affecting other states or regions and claimed to use a consistent analysis for all states.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
PacifiCorp v. Environmental Protection Agency, 23-1068Issue
: Whether the EPA’s disapproval of a State Implementation Plan may only be challenged in the D.C. Circuit under 42 U.S.C. SS 7607(b)(1) if EPA packages that disapproval with disapprovals of other states’ SIPs and purports to use a consistent method in evaluating the state-specific determinations in those SIPs.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137Issue
: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
G-Max Management, Inc. v. New York, 23-1148Issues
: (1) Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings; and (2) whether this court should overrule Penn Central Transportation Co. v. City of New York, or at least clarify the standards for determining when a regulatory taking occurs.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Environmental Protection Agency v. Calumet Shreveport Refining, L.L.C., 23-1229Issue
: Whether venue for the refineries’ challenges lies exclusively in the D.C. Circuit because the agency’s actions of denial are “nationally applicable,” or alternatively “based on a nationwide scope or impact determination.” 42 U.S.C. 7607(b)(1).
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Growth Energy v. Calumet Shreveport Refining, L.L.C., 23-1230Issue
: Whether an action by the EPA is “nationally applicable” or “based on a determination of nationwide scope or effect” for purposes of laying venue under 42 U.S.C. SS 7607(b)(1) when the action uses a common legal requirement and a general factual finding to resolve all pending “small refinery” petitions for exemption from annual obligations under the Renewable Fuel Program irrespective of the petitioning refineries’ location.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Kerr v. Planned Parenthood South Atlantic, 23-1275Issues
: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Brinkmann v. Town of Southold, New York, 23-1301Issue
: Whether the takings clause is violated when a property is taken for a public amenity as pretext for defeating an owner’s plans for another use.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Consumers’ Research v. Consumer Product Safety Commission, 23-1323Issue
: Whether the for-cause restriction on the president’s authority to remove commissioners of the Consumer Product Safety Commission violates the separation of powers.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Andrew v. White, 23-6573Issues
: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30 and Oct. 11 conferences. )
Gordon v. Massachusetts, 23-7150Issues
: (1) Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute forensic expert conveying testimonial statements of a non-testifying forensic analyst on the grounds that the testifying expert offers a purportedly “independent opinion;” and (2) whether the Sixth Amendment right to counsel precludes a criminal defendant’s trial counsel from suggesting to a jury that trial counsel does not believe the testimony of the defendant.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Esteras v. United States, 23-7483Issue
: Whether, even though Congress excluded 18 U.S.C. SS 3553 (a)(2)(A), which is not included in 18 U.S.C. SS 3583(e)’s list of factors to consider when revoking supervised release, a district court may rely on the Section 3553(a)(2)(A) factors when revoking supervised release.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Wilson v. Hawaii, 23-7517Issue
: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
