9th ninth circuit
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see district appeal court
also COURTS 2
prolly neglected
220 bak
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an 4 26
Arizona’s legislative leaders can’t dismantle a new national monument near the Grand Canyon that they claimed would harm both the state and local governments, a federal appeals court ruled Wednesday.
In the memorandum ruling, a three-judge panel on the 9th U.S. Circuit Court of Appeals unanimously agreed with a lower court ruling made more than a year ago. Both courts ruled that Republican legislative leaders lacked standing to bring the lawsuit because all of the harms they claimed the monument would cause were speculative.
Republicans in the Arizona Legislature have criticized the creation of the Baaj Nwaavjo I’tah Kukveni — Ancestral Footprints of the Grand Canyon National Monument since President Joe Biden designated it in 2023. That designation effectively barred mining on the roughly one million acres of land near Grand Canyon National Park that make up the monument.
Mining on the land within the monument is already barred until at least 2032, but the new designation will ban it indefinitely.
Senate President Warren Petersen and former House Speaker Ben Toma, both Republicans, filed a lawsuit in 2024, asking the court to declare the creation of the monument unlawful and to set aside its designation.
Joining in the suit were State Treasurer Kimberly Yee, who is also a Republican, Mohave County, Colorado City and the town of Fredonia.
Arizona Attorney General Kris Mayes, alongside Gov. Katie Hobbs, both Democrats, intervened in the lawsuit to argue for the preservation of the monument.
Mayes celebrated the win on Wednesday.
“Today’s ruling is a victory for the people of Arizona and for the Indigenous communities whose ancestral homelands are protected by this monument,” Mayes said in a statement. “The court rejected every argument Senate President Warren Petersen, Speaker of the House Steve Montenegro, and Treasurer Kimberly Yee put forward. I am proud to have stood up to defend these sacred and important lands.”
Biden created the monument in response to advocacy from the Native American communities whose ancestral homelands are located in and near the Grand Canyon and who still rely on the canyon for natural and cultural resources that are significant and sacred to their communities.
In the unsigned memorandum, Judges Consuelo Callahan, John Owens and Michelle Friedland wrote that the Arizona Legislature couldn’t base its arguments for dismantling the monument on its “fears of hypothetical future harm.”
Callahan was appointed to the Ninth Circuit by President George W. Bush, while Owens and Friedland were appointed by President Barack Obama.
“It’s sad to see the Ninth Circuit kicked the can down the road,” Petersen said in a statement to the Arizona Mirror.
Petersen said he was disappointed that the court decided the challenge “came too soon” and failed to address the legislature’s claim that Biden lacked the authority to create the monument in the first place.
“Arizona families should not have to wait years while our land and economic opportunities remain locked up,” he said. “We will continue fighting to protect Arizona’s economy, jobs, and state sovereignty from this expansive federal land lock-up, including through any available avenues at the federal level. We are actively working with the Trump administration to undo this illegal land grab.”
In the challenge, the Arizona Legislature argued that the Antiquities Act of 1906, which Biden used to designate the monument, didn’t actually give him the power to do so.
Instead of addressing that claim, the courts ruled that none of the entities that brought the challenge could establish a concrete injury upon which they could base their case.
“Their alleged loss of future tax revenue depends on uranium prices being sufficiently high in 2032 (or whenever the pre-existing protections expire) such that third-party companies would choose to begin mining,” the appellate judges wrote. “But it is speculative whether the right economic conditions and incentives for uranium mining will exist so far into the future.”
The courts agreed that claims from the government entities that the creation of the monument was losing them tax revenue on geothermal and mineral leasing were also speculative.
“Plaintiffs fail to allege that any entity has ever sought to engage in ‘mineral or geothermal leasing,’ or that the monument land even contains those resources,” the judges wrote.
The Ninth Circuit found Colorado City’s argument that the creation of the monument endangered its future water supply equally unconvincing. Colorado City claimed that because its water was supplied from an aquifer beneath the monument, the federal government might decide to restrict access to that water in the future.
The judges wrote that Biden’s proclamation doesn’t alter existing water rights and “there is otherwise no reason to speculate that the federal government will ‘reduce Colorado City’s water supply,’ as Colorado City fears.”
The Ninth Circuit also disagreed with the Arizona Legislature’s claim that the creation of the monument strips it of its power to sell, lease and set royalty rates for state land surrounded by the monument. The judges wrote that the legislature could “continue to manage and dispose of state land as it sees fit.”
The court similarly shot down the Arizona Legislature’s claim that the monument designation harmed the state by forcing it to channel time and money to “passing laws, holding hearings, and publicly commenting” on issues caused by the monument.
“A plaintiff may not ‘manufacture’ an injury by ‘simply choosing to spend money,’” the Ninth Circuit wrote.
The judges wrote that the legislature had failed to show that it would have suffered any harm if it hadn’t passed laws, held hearings or made public comments relating to the monument.
The judges also dismissed the legislature’s claim that it, and the other plaintiffs, might lose money in the future due to increases in energy prices caused by the ban on uranium mining within the monument.
“Future energy prices depend on many unknown variables and the ‘unfettered choices’ of innumerable third parties,” the judges wrote. “Any future economic harm from higher energy prices caused by the Proclamation is accordingly far too speculative to support standing.”
The tribal nations with ancestral lands within the monument include the Havasupai Tribe, Hopi Tribe, Hualapai Tribe, Kaibab Band of Paiute Indians, Las Vegas Paiute Tribe, Moapa Band of Paiutes, Paiute Indian Tribe of Utah, Navajo Nation, San Juan Southern Paiute Tribe, Yavapai-Apache Nation, Pueblo of Zuni, and the Colorado River Indian Tribes.
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AN 2 26
*This is a developing story and may be updated.
Ongoing legal fights over President Donald Trump’s attempt to send hundreds of Oregon, California and Texas National Guard troops to Portland last fall over the objections of residents and state and local leaders will come to an end.
Mary Helen Murguia, chief judge of the 9th Circuit Court of Appeals, agreed Tuesday to let the federal government drop its appeal of a November decision from a lower court judge that barred the attempted Guard deployment.
Judge Karin Immergut, of the U.S. District Court in Portland and a Trump appointee, sided with Oregon and the city of Portland in their case against Trump, Defense Secretary Pete Hegseth and Homeland Security Secretary Kristi Noem. Her November order barring guard deployment to the city stays in effect.
Immergut found Trump’s justification for the attempted deployment — that protests outside of a Portland Immigration and Customs Enforcement facility since June constituted a “rebellion” against the federal government and significantly impeded its functions — was unfounded. She further found that the attempt to deploy guard troops violated the federal code and the U.S. Constitution.
Federal lawyers immediately appealed Immergut’s decision. But in late January, they reversed course, asking the 9th Circuit Court of Appeals in a single sentence to permit them to drop the case.
Lawyers for Oregon, the city of Portland and California — which joined Oregon’s lawsuit against Trump — agreed not to challenge the request for dismissal as long as the appeals court judges ensured Immergut’s decision would stand and the federal government would be required to comply with it.
“This is a win for Oregon, and it shows that no one is above the law. The federal government didn’t have a case — facts mattered. Our communities won’t be treated as a testing ground for unchecked federal power,” Oregon Attorney General Dan Rayfield said in a statement. “Judge Immergut’s injunction stands, and we’ll keep defending Oregon’s laws, our values, and the safety of our cities — and if the government tries to overstep, we won’t hesitate to go back to court.”
Willamette University professor Norman Williams, a constitutional law expert, echoed Rayfield, similarly calling it a “win for the state.” And not an unexpected win. The “handwriting was on the wall,” Williams said, when the U.S. Supreme Court in December ruled against Trump in his attempt to send National Guard troops to Illinois.
The Portland ICE facility at the heart of the case is now the subject of two court cases brought against federal officers by nearby residents and the Oregon chapter of the American Civil Liberties Union, or ACLU, on behalf of protesters and journalists, who claim ICE and federal officers have used excessive force and tear gas against them.
A judge recently temporarily barred the officers from deploying less-lethal munitions and chemicals at protesters unless the agents are in “imminent threat of physical harm.” The ruling came after agents used excessive force and heavily gassed crowds of nonviolent protesters that included children and seniors.
{2:53 pm Updated with comment from Oregon Attorney General Dan Rayfield.}:
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TRUMP JUDGE POSSE COMM
AN COMM DR 10 25
Top Trump administration adviser Stephen Miller was accused of spreading dangerous “propaganda” Saturday night regarding the federal judge who ruled that the White House could not deploy 200 National Guard troops to Portland, Oregon.
The White House deputy chief of staff accused US District Judge Karin Immergut, who was appointed by President Donald Trump during his first term, of “legal insurrection” after she found that the president’s claims about violent protests at a US Immigration and Customs Enforcement facility in Portland were “untethered to facts,” and that residents’ expressions of opposition to ICE do not meet the high legal standard for calling the National Guard.
Miller claimed authorities in Oregon and Portland are aiding “an organized terrorist attack on the federal government and its officers” by refusing to aid ICE agents, and claimed Immergut was attempting to assume the role of “commander-in-chief of the Armed Forces” by siding with state officials and issuing a temporary restraining order blocking the National Guard deployment, which was expected to begin this weekend.
Immergut said the state had provided “substantial evidence that the protests at the Portland ICE facility were not significantly violent or disruptive in the days—or even weeks—leading up to the president’s directive.”
Portland residents who oppose Trump’s mass deportation agenda began holding nightly demonstrations at the ICE facility over the summer, with some trying to block vehicles from entering and exiting the property. Crowds have dispersed quickly during the daytime, while at night federal officers have sometimes used tear gas and other weapons to move people away from the building. The Portland police have reported 27 arrests since early June at the protests, and at least two dozen people have been arrested by federal officers.
While the president has described Portland as “war-ravaged,” Immergut said that the protests fall far below the threshold for ordering federal troops to Portland, which the president has the authority to do only in times of foreign invasion, a rebellion, or when local authorities are unable to maintain order.
“The protests have been such a minor issue that the normal nightlife in downtown Portland has required more police resources than the ICE facility,” said Immergut.
The judge added that the US “has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs... This historical tradition boils down to a simple proposition: This is a nation of constitutional law, not martial law. Defendants have made a range of arguments that, if accepted, risk blurring the line between civil and military federal power—to the detriment of the nation.”
Miller’s accusation that Immergut was taking part in a “legal insurrection” by rejecting Trump’s false claims about the nature of the protests was “reckless,” said California Gov. Gavin Newsom.
“It’s authoritarian propaganda, plain and simple. Stephen Miller should be fired,” said the Democrat.
New York Timescolumnist David French added that Miller’s claims put Immergut in potential danger, as right-wing counterprotesters have arrived in Portland in recent days.
Immergut’s temporary order is set to expire in two weeks, but she is expected to rule on the state’s request for a more permanent injunction barring the deployment of the National Guard.
The Trump administration on Saturday night appealed Immergut’s ruling to the 9th Circuit Court of Appeals, which previously ruled that Trump could send the National Guard to Los Angeles to stop anti-ICE protests after a federal judge had decided that deployment should be halted.
In addition to seeking the National Guard deployment, the administration has reportedly discussed sending the Army’s 82nd Airborne division, which is typically deployed in hostile foreign territory, into Portland.
On Saturday, Miller repeated claims that “there is a large and growing movement of left-wing terrorism in this country” that is “well organized and funded” and ”shielded by far-left Democrat judges.” Immergut is a Republican.
“The only remedy is to use legitimate state power to dismantle terrorism and terror networks,” said Miller.
Since the assassination of right-wing activist Charlie Kirk last month, the president and his allies have insisted that left-wing groups are fomenting violence, with Trump signing an executive order falsely claiming he has the authority to designate “antifa” as a “domestic terrorist organization”—despite the fact that no “antifa” organization exists.
The president also signed National Security Presidential Memorandum 7 (NSPM-7), which mandates a “national strategy to investigate and disrupt networks, entities, and organizations that foment political violence so that law enforcement can intervene in criminal conspiracies before they result in violent political acts.”
On Saturday, Miller said on Newsmax that the administration intends to apply NSPM-7 in Portland, initiating investigations into what he called a “domestic terrorist network” whenever federal agents make an arrest at a protest.
Miller, said investigative reporter Jim Stewartson, “collapsed Democrats, ‘far-left Democrat judges’, and ‘antifa’ into a single domestic terror threat as a pretext for mass arrests.”
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10 24 master class scotus? CU did not get --> AFP lawsuit camp finance disclosure?
Americans for Prosperity v. Bonta - Ballotpedia
Americans for Prosperity v. Bonta is a case that was argued before the Supreme Court of the United States on April 26, 2021, during the court's October 2020-2021 term. It was consolidated with Thomas More Law Center v. Bonta (formerly Thomas More Law Center v. Becerra).
In a 6-3 opinion, the U.S. Supreme Court reversed the U.S. Court of Appeals for the 9th Circuit's ruling and remanded the case for further proceedings, holding that the district court was correct in entering judgment in favor of the petitioners and permanently enjoining the California Attorney General from collecting their Schedule B forms, and that the Ninth Circuit erred when it vacated those injunctions and directed the entry of judgment for the attorney general. Chief Justice John Roberts delivered the majority opinion of the court. Justice Clarence Thomas filed a concurring opinion. Justice Samuel Alito filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justices Stephen Breyer and Elena Kagan.[1] Click here for more information about the ruling.
HIGHLIGHTS
- The case: Two conservative advocacy groups, the Thomas More Law Center and Americans for Prosperity, challenged a California policy requirement that tax-exempt §501(c)(3) charitable organizations must disclose the names and addresses of major donors. The groups argued that the policy violated the First Amendment to the U.S. Constitution. On appeal, the U.S. Court of Appeals for the 9th Circuit ruled in favor of the state. Click here to learn more about the cases' background.
- The issues: The cases concerned governmental disclosure requirements for charitable organizations' donor lists and the Supreme Court's decision in NAACP v. Alabama.
- The questions presented: "Whether the exacting scrutiny this Court has long required of laws that abridge the freedoms of speech and association outside the election context—as called for by NAACP v. Alabama, 357 U.S. 449 (1958), and its progeny—can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest."[2]
- The outcome: The U.S. Supreme Court reversed the U.S. Court of Appeals for the 9th Circuit's ruling and remanded the case for further proceedings.
The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. To review the lower court's opinion in the consolidated cases, click here.[3]
Timeline...
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ram rundo nazi fight club
3 24 ICHH bogus selective prosecution bizzaro antifa; flight risk serbia active clubs europe, go far enough so so not cross US air space fail el salvador, 9th tries to keep in jail, carney judge retire racist
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Federal court hands major loss to Arizona Republican election deniers - Alternet.org
arizona Republicans Kari Lake and Mark Finchem — who both ran in 2022 for Governor and Secretary of State, respectively — just had their case challenging the use of vote tabulation machines dismissed by a federal appeals court.
The Arizona Daily Star reported that a three-judge panel for the 9th Circuit Court of Appeals ruled that the case brought by Lake and Finchem lacked any evidence to back up claims that their constitutional rights were violated. Notably, the panel stated in an 11-page opinion that both Lake and Finchem "conceded that their arguments were limited to potential future hacking, and not based on any past harm."
"[E]ven assuming Plaintiffs could continue to claim standing as prospective voters in future elections, they had not alleged a particularized injury and therefore failed to establish the kind of injury Article III requires," the ruling read. "None of Plaintiffs’ allegations supported a plausible inference that their individual votes in future elections will be adversely affected by the use of electronic tabulation, particularly given the robust safeguards in Arizona law, the use of paper ballots and the post-tabulation retention of those ballots."
This is not the first loss both Lake and Finchem have had in the courts. In March, Finchem, who lost the 2022 race for Secretary of State by more than 120,000 votes, was sanctioned by Maricopa County Superior Court Judge Melissa Iyer Julian for bringing a "groundless" case before her court.
"None of Contestant Finchem’s allegations, even if true, would have changed the vote count enough to overcome the 120,000 votes he needed to affect the result of this election," Julian wrote. "The Court finds that this lawsuit was groundless and not brought in good faith."
Lake, for her part, was sanctioned in May for making "false factual statements" before the court regarding her loss to Democrat Katie Hobbs in the gubernatorial race. Her legal team was ordered to pay $2,000 for falsely stating that 35,000 ballots in Maricopa County — which houses approximately 60% of Arizona's registered voters — were improperly added to the total count.
Both Lake and Finchem continue to stand by their false claims that former President Donald Trump was the winner of the 2020 presidential election. As a state lawmaker, Finchem sponsored several resolutions attempting to decertify Biden's electoral college victory in Arizona. Lake, who is currently running for the US Senate seat currently occupied by Senator Kyrsten Sinema (I-Arizona), still has yet to officially concede that she lost in 2022.
READ MORE:'Very concerned': Analyst predicts dangers of election deniers leading 17 states
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2018 9th circuit
https://www.politico.com/news/2021/07/01/supreme-court-california-disclosure-law-donors-497554
no lnx
Supreme Court nixes California disclosure law in blow to dark-money opponents
The high court ruled a state law requiring not-for-profit organizations that raise money in California to disclose their donors violated the donors' First Amendment rights.
The Supreme Court has ordered California to stop collecting the names and addresses of top donors to charities, siding with a nonprofit group with links to billionaire Charles Koch.
The Americans for Prosperity Foundation, backed by political megadonors Charles Koch and the late David Koch, brought one of the suits. | David Zalubowski, File/AP Photo
By JOSH GERSTEIN and ZACH MONTELLARO
07/01/2021
The Supreme Court dealt a blow Thursday to efforts to rein in so-called dark money political groups, issuing a ruling striking down California’s policy of demanding donor lists from nonprofit organizations.
The high court split 6-3 along ideological lines in its decision on a pair of cases challenging that California requirement, which forced non-profits raising money in California to give the state copies of federal tax forms containing donor information.
Chief Justice John Roberts, who wrote the majority opinion for the court, ruled that California’s “blanket demand” for that information “is facially unconstitutional.”
“When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough,” Roberts wrote for the court.
The ruling could have a political impact, complicating donor-disclosure requirements for groups that often pour large sums into elections but stop just short of the “express advocacy” for or against candidates that triggers stricter rules on revealing the sources of donations.
The court ruled that the California mandate for groups to turn over donor information to the state, even if kept confidential, was overly broad.
“The point is that a reasonable assessment of the burdens imposed by disclosure should begin with an understanding of the extent to which the burdens are unnecessary, and that requires narrow tailoring,” Roberts wrote.
Roberts’ ruling did not address the federal government’s authority to require the filing of donor information with the Internal Revenue Service. Most charities are still required to file lists of donors giving over $5,000 in a given year, but in 2018 the IRS dropped the requirement for some politically-oriented groups.
The justices’ ruling Thursday addressed lawsuits filed by two politically active, conservative nonprofit organizations in 2015. The Americans for Prosperity Foundation,backed by political megadonors Charles Koch and the late David Koch, brought one of the suits. The other was filed by the Thomas More Law Center, a Michigan-based legal organization active on behalf of Catholic causes that was bankrolled by Tom Monaghan, founder of Domino’s Pizza.
Both organizations argued that California rules requiring filing of donor lists with state officials violate the First Amendment by discouraging individuals from giving and by exposing them to threats and harassment.
In 2016, AFP persuaded a federal judge in Los Angeles to issue a permanent injunction against the requirement. The judge said the state rarely used the information, but often disclosed it accidentally with charities’ public tax filings.
However, two years later, a 9th Circuit Court of Appeals panel unanimously reversed that ruling,holding that the state had a legitimate need for the data and that the Koch-founded group had not shown a significant burden on donors.
It’s unclear how the Supreme Court’s conclusions will impact similar donor-disclosure requirements at the federal level. The Internal Revenue Service has generally done a better job of keeping filings it receives confidential.
Part of Roberts’ opinion does, however, open the door to challenges to other disclosure requirements: “While exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest,” he wrote.
Justice Sonia Sotomayor, writing in dissent and joined by the two other liberal-leaning justices, did however predict that the decision would open the floodgates to weakening disclosure requirements.
“Today’s analysis marks reporting and disclosure requirements with a bull’s-eye,” she wrote. “Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns.’”
The high court rulings could have a broader impact on efforts by Democrats to broaden and increase disclosure requirements, particularly for groups that run ads that mention federal candidates while stopping short of explicitly endorsing or opposing them.
The For the People Act, congressional Democrats’ massive campaign and ethics reform legislation that is stalled in the Senate amid Democratic infighting and a successful Republican filibuster last week, also contains provisions that would remake campaign finance disclosure law if enacted.
Senate Majority Leader Chuck Schumer stands with Sens. Raphael Warnock and Amy Klobuchar while speaking with reporters before a vote on the For the People Act.
CONGRESS
[Senate Republicans block Dems’ sweeping elections reform bill
BY MARIANNE LEVINE AND ZACH MONTELLARO]
Amid the hundreds of pages of the bill is a long-fought-over proposal that would dramatically expand which organizations are required to disclose donors and expenditures if they spend a nominal amount on communications that broadly mention federal candidates.
Republicans are now broadly opposed to such measures, a turnabout from two decades ago when prominent GOP leaders backed robust disclosure rules as an alternative to attempts to restrict donations to campaigns and outside groups.
“Republicans are in favor of disclosure,” Sen. Mitch McConnell (R-Ky.) said in a 2000 interview. “Why would a little disclosure be better than a lot of disclosure?”
McConnell has said that soon after those comments — and the passage of the Bipartisan Campaign Reform Act despite his opposition in 2002 — he concluded that such rules for groups that don’t engage in express advocacy violate the First Amendment. In the AFP case decided Thursday, he filed an amicus brief saying donor-disclosure requirements should face the “strictest scrutiny” when reviewed in court.
While AFP and the Thomas More Law Center unsurprisingly garnered support for their legal challenges from other conservative organizations, several liberal groups and First Amendment advocates also urged the Supreme Court to rule in favor of donor privacy in the cases.
The NAACP Legal Defense & Educational Fund, the American Civil Liberties Union, the LGBTQ rights advocacy group Human Rights Campaign and others argued that the justices should hold that California’s failure to keep the donor information confidential violated the conservative groups’ rights.
However, the liberal organizations’ brief — which drew significant interest from conservative justices at oral arguments — pushed the court toward a narrow decision that would not upset disclosure requirements for political campaigns or address the rights of regulators with a better track record for confidentiality to gather donor information.
FILED UNDER: CAMPAIGN FINANCE, CALIFORNIA, U.S. SUPREME COURT,}}
https://www.commondreams.org/newswire/2022/04/19/ninth-circuit-deals-latest-blow-big-oil-ruling-california-climate-lawsuits
for Immediate Release
Tuesday April 19, 2022,
Contact
Mike Meno, Center for Climate Integrity, mike@climateintegrity.org
PRESS RELEASE
Ninth Circuit Deals Latest Blow to Big Oil, Ruling that California Climate Lawsuits Belong in State Court
Three Federal Appeals Courts Have Now Handed Major Losses to Fossil Fuel Companies After the U.S. Supreme Court Ordered Expanded Review of Big Oil’s Arguments for Federal Jurisdiction
WASHINGTON -
Lawsuits from six California cities and counties seeking to hold major oil and gas companies — including ExxonMobil, BP, Chevron, and Shell — accountable for the cost of climate damages they knowingly caused should proceed in state court, the U.S. Court of Appeals for the Ninth Circuit ruled today.
The unanimous ruling from a three-judge panel means that the counties of San Mateo, Marin, and Santa Cruz, and the cities of Imperial Beach, Richmond, and Santa Cruz are now one key step closer to putting oil majors on trial for deceiving the public about their role in climate change.
The Ninth Circuit decision marks the third time this year that a federal appeals court has rejected arguments from the oil industry to move climate liability lawsuits filed in state court to federal courtfollowing a 2021 U.S. Supreme Court ruling.
At least ten federal district courts have similarly ruled that climate accountability lawsuits filed in state court belong in state court — “a batting average of .000” for the fossil fuel industry, in the words of one judge.
In response, Richard Wiles, president of the Center for Climate Integrity, released the following statement:
“This is another big, but not surprising, loss for the oil and gas majors. Three federal appeals courts have now agreed that their arguments to escape accountability in state court do not pass muster. This ruling is a major victory for these California communities seeking their day in court against corporate polluters that spent decades lying about their products’ role in fueling the climate crisis.”
Background:
Earlier this year, the U.S. Courts of Appeals for the Tenth Circuit and the Fourth Circuit issued similar rulings in climate accountability lawsuits from communities in Colorado and Maryland, respectively.
Four other federal circuit courts across the country are considering similar arguments from Exxon and other oil and gas companies, which have repeatedly lost efforts to move climate accountability lawsuits out of state court.
Since 2017, the attorneys general of Connecticut, Delaware, Massachusetts, Minnesota, Rhode Island, Vermont, and the District of Columbia, as well as 20 city and county governments in California, Colorado, Hawaii, Maryland, New Jersey, New York, South Carolina, and Washington, have filed lawsuits to hold major oil and gas companies accountable for deceiving the public about their products’ role in climate change.
actually not spec 9th?
https://www.alternet.org/2020/10/mcconnell-is-betting-democrats-dont-have-the-will-to-fight-fire-with-fire-biden-should-prove-them-wrong
...Back in 2013, then-CongressmanTom Cotton introduced a bill in the House called the "Stop Court-Packing Act" which would haveeliminated three seats on the D.C. Court of Appeals. That seems like a strange title, but it gives away the game. He was trying to stop President Obama from being able to fill those three empty seats. Senator John Cornyn, R-Texas, agreed, writing a piece in the National Review called "Don't let the Democrats pack the DC Circuit." Keep in mind that these were legitimate vacancies.
As it happens, McConnell kept those and many other seats open so that a Republicans could fill them, so they needn't have worried. And he's very proud of it:
...
OMFG
https://www.alternet.org/2020/09/mcconnell-quietly-rams-through-more-lifetime-trump-judges-while-blocking-19-relief-everyone-in-america-should-be-outraged/
no lnx twt ari berman jake j
as Covid-19 relief for jobless and hungry Americans, collapsing small businesses, and state and local governments languishes in the Senate GOP’s legislative graveyard, Majority Leader Mitch McConnell on Tuesday further advanced his years-long project of dragging U.S. federal courts to the right by ramming through three more of President Donald Trump’s lifetime judicial nominees and teed up votes on several others.
Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, noted on Twitter that the latest confirmations came four months to the day after the Democrat-controlled House passed the Heroes Act, a $3 trillion coronavirus relief package that McConnell dismissed as an “unserious liberal wish list” and blocked from receiving a vote in the Senate.
“Everyone in America should be outraged that this is how Mitch McConnell is spending the Senate’s time amid a pandemic,” tweeted Gupta.
In a separate tweet Wednesday morning, Gupta urged the U.S. public to “pay attention” as McConnell and Trump’s court takeover proceeds apace amid the ongoing coronavirus crisis and resulting economic collapse—to which Senate Republicans have responded by putting forth legislation decried as piecemeal and wholly inadequate.
"As McConnell blocks the Heroes Act, the George Floyd Justice in Policing Act, election funding, and dozens of civil rights bills, his priority today (amid the pandemic) will be confirming three more Trump judges after confirming three yesterday,” said Gupta. “It’s an outrage.”
While Senate Democrats don’t have the numbers to block Trump’s judicial nominees, few even bothered to object Wednesday to the confirmations of John Holcomb, Stanley Blumenfeld, and Mark Scarsi to lifetime positions on the U.S. District Court for the Central District of California. Just 12 Democratic senators voted against Holcomb and Scarsi, and only four voted against Blumenfeld.
The confirmations came days after major court decisions laid bare the real-world consequences of Trump and McConnell’s takeover of the U.S. judiciary, which will impact key areas of American society—from climate policy to voting rights—for decades to come.
Last Friday, as Common Dreams reported, the powerful U.S. Court of Appeals for the 11th Circuit upheld a Florida requirement that state residents with past felony convictions pay off all court fines and fees before they are allowed to register to vote—a ruling made possible by Trump’s appointees.
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“The only reason it was upheld was because Donald Trump flipped the 11th Circuit with five Trump judges,” Mother Jones journalist Ari Berman told Democracy Now! on Tuesday. “And this is why Mitch McConnell in the Republican Senate is so intent on confirming judges and doing nothing else. This week, McConnell is going to confirmeight more judges to the federal bench, but they’re not doing anything else to help the American people.”
Late Sunday, the U.S. Court of Appeals for the Ninth Circuit—which Trump also flipped with right-wing judges—upheld the White House’s push to end “temporary protected status” (TPS)for hundreds of thousands of immigrants from El Salvador, Haiti, Nicaragua, and Sudan.
“Without Congressional action, this will lead to devastating moral and economic consequences not just for TPS holders but for their families, communities, and for the entire country,” Peniel Ibe, policy engagement coordinator for the American Friends Service Committee, warned in response to the ruling.
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hmn:
tool/site: http://blogs.law.columbia.edu/climatechange/2018/11/06/november-2018-updates-to-the-climate-case-charts/
eg
Each month, Arnold & Porter and the Sabin [metals?] Center for Climate Change Law [columbia U] collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 115.
FEATURED CASE
Supreme Court Denied Stay of Young People’s Constitutional Climate Case, Saying Federal Government Could Ask Ninth Circuit to Stop Case
On November 2, 2018, the U.S. Supreme Court issued an order denying the federal government’s application for a stay of district court proceedings in the constitutional climate case brought by young plaintiffs in the District of Oregon. The Court also vacated an administrative stay granted by Chief Justice Roberts on October 19. The federal government had sought a stay pending the Court’s disposition of a petition for a writ of mandamus ordering the district court to dismiss the suit.
The trial had been scheduled to start on October 29. The Court said the petition for a writ of mandamus did not have a “fair prospect” of success because the government could still seek mandamus relief in the Ninth Circuit. The Court noted that while theNinth Circuit had denied two earlier requests for mandamus relief in this case, “the court’s basis for denying relief rested, in large part, on the early stage of the litigation, the likelihood that plaintiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions.” The Supreme Court indicated that those reasons were, “to a large extent, no longer pertinent” since a 50-day trial was scheduled to begin on October 29, 2018 and had been held in abeyance only because of Chief Justice Roberts’s administrative stay. Justices Gorsuch and Thomas would have granted the stay.
Earlier in October, the district court largely denied the federal government’s dispositive motions in the case. The district court granted in part and denied in part motions for summary judgment and judgment on the pleadings. The court declined to rule for the defendants at this stage on the primary claims advanced by the plaintiffs: a “state-created danger” due process claim and a public trust claim. The court dismissed President Trump from the action (but without prejudice) and also granted summary judgment to the defendants on the plaintiffs’ Ninth Amendment claim and on an equal protection claim based on “posterity” being a suspect classification.
The district court said, however, that an equal protection claim based on alleged interference with a right to a climate system capable of sustaining human life would be aided by further development of a factual record.
The district court rejected arguments that the case was required to be heard under the Administrative Procedure Act; that separation of powers principles foreclosed the plaintiffs’ claims; that plaintiffs lacked standing; and that there is no right to a climate system capable of sustaining human life. The district court declined to certify its decisions for interlocutory appeal. On the same day, the district court denied the government’s motion for a stay pending Supreme Court review.
On October 12, a few days prior to the district court’s ruling on the dispositive motions and denial of the government’s motion for a stay, the government filed a third petition for writ of mandamus in the Ninth Circuit Court of Appeals, also seeking a stay of district court proceedings pending Supreme Court review. On November 2, 2018, just hours before the Supreme Court denied the government’s stay application, the Ninth Circuit Court of Appeals issued an order denying the federal government’s request. TheNinth Circuit said that Chief Justice Roberts’s granting of a stay of the litigation on October 19 rendered the government’s “non-substantive” motion moot.
Correction: The October monthly update indicated incorrectly that the trial in Juliana v. United States was expected to last two weeks. Lawyers for the parties estimated that the trial would last 50 days or 8 to 12 weeks.
In re United States, No. 18-505/18A-410 (U.S. Nov. 2, 2018); United States v. U.S. District Court for District of Oregon, No. 18-72776 (9th Cir. Nov. 2, 2018); Juliana v. United States, No. 6:15-cv-1517 (D. Or. Oct. 15, 2018). Link to case page is available here.
DECISIONS AND SETTLEMENTS
Supreme Court Declined to Consider Appeals of D.C. Circuit Ruling That EPA Lacked Authority to Issue Rule Restricting HFCs with High Global Warming Potential...
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icn 920
five States Have Filed Climate Change Lawsuits, Seeking Damages From Big Oil and Gas- InsideClimate News
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https://insideclimatenews.org/news/14092020/climate-change-lawsuit-connecticut-deleware
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connecticut and Delaware have joined a growing list of states, cities and counties that have filed climate change lawsuits against the fossil fuel industry, claiming oil and gas companies knew their products caused sea level rise and stronger hurricanes and willfully misled the public about those and other dangers related to global warming.
Connecticut's lawsuit, filed Monday, named ExxonMobil as a sole defendant, while the lawsuit filed on Friday by Delaware named 31 fossil fuel companies and trade groups. They joined Massachusetts, Rhode Island and Minnesota as states that have filed such litigation.
Former Vice President Joe Biden, who served 36 years as a senator from Delaware, cited the state's lawsuit in a climate change address on Monday to underscore the costs of global warming and the Trump Administration's failure to address the issue. He called Trump, who was surveying the devastation of wildfires in California, a "climate arsonist."
"Just last week Delaware state attorney general sued 31—31—big fossil fuel companies alleging they knowingly wreaked havoc and damage on climate—our climate—damage that is plain for everyone to see but the President," he said.
The coastal city of Charleston, South Carolina, also filed a climate lawsuit last week, joining close to 20 other cities and counties seeking to hold the fossil fuel industries liable for damages resulting from increased flooding and precipitation, droughts and intensifying storm surges, in addition to sea level rise and stronger hurricanes. The other cities include Baltimore, Oakland, San Francisco and Washington, D.C.
In Connecticut's suit filed Monday, Attorney General William Tong sued Exxon for violating the state's Unfair Trade Practices Act, which allows for wide-ranging claims of public and private nuisance, trespass, negligence and for violating its Consumer Fraud Act.
"ExxonMobil sold oil and gas, but it also sold lies about climate science," Tong said when announcing the multi-billion dollar climate lawsuit against the company.
This spate of lawsuits comes after a series of recent rulings in similar cases that appear to give the advantage to states, counties and cities, legal scholars say.
The lawsuits also may send further tremors through the financial world that this summer has seen Exxon dropped from the Dow Jones Industrial Average and a U.S. Commodity Futures Trading Commission report that concluded climate change threatens U.S. financial markets, those experts say.
Connecticut Singles Out Exxon for its 'Deceptive Record'
Unlike the other climate lawsuits confronting the oil and gas industry that sweep up the world's largest producers, the Connecticut lawsuit singles out Exxon as the sole defendant because the company's deceptive record is well established, Tong said in an email interview.
"ExxonMobil is a leader in the industry and has been for decades," Tong said. "We have evidence that shows that Exxon knew from its own scientists that climate change was occurring, made a deliberate decision to deceive consumers, and then successfully implemented that plan over the course of decades.
"That's the evidence we have, and it makes our case very straightforward."
The climate lawsuits cite an InsideClimate News series and a later Los Angeles Times story that revealed the extent of Exxon's knowledge about the central role of fossil fuels in causing climate change as far back as the 1970s, based on research performed by its own scientists.
"ExxonMobil's campaign of deception has contributed to myriad negative consequences in Connecticut, including but not limited to sea level rise, flooding, drought, increases in extreme temperatures and severe storms, decreases in air quality, contamination of drinking water, increases in spread of disease, and severe economic consequences," Connecticut's lawsuit says.
The lawsuit seeks money to pay for defending against climate change threats, restitution for remediation costs already made, disgorgement of corporate profits, civil penalties and disclosure of all climate research.
It also calls for the creation of a climate change education fund and an immediate end to the false and misleading information that ExxonMobil has been disseminating for years.
Exxon did not respond to a request for comment.
Recent Rulings Weaken the Fossil Fuel Industry's Defense
Although the industry will no doubt put up a strenuous fight against these lawsuits, its chances of winning them have been diminished by a series of court rulings favorable to the plaintiffs, said Richard Frank, director of the California Environmental Law & Policy Center at the University of California, Davis School of Law.
Frank cited a recent ruling by the Ninth U.S. Circuit Court of Appeals that ordered seven cases filed by local governments in California transferred from federal court to state court.
"The decision on where these cases will be heard seems to be pretty well settled," Frank said. "The state court forum gives the advantage to the plaintiffs whereas federal judges may not have had as much sympathy for these cases."
The first salvo in the legal war was fired in 2017 when Marin and San Mateo counties, near San Francisco, and the city of Imperial Beach, south of San Diego, filed climate lawsuits and drew national attention for daring to take on the powerful fossil fuel industry.
A ripple from the mounting number of lawsuits could be the further weakening of the oil industry's standing in financial markets, said Pat Parenteau, a professor of environmental law at the Vermont Law School.
Parenteau said a decision by the Dow Jones Industrial Average to drop Exxon was a wakeup call to investors, as was last week's decision by federal financial regulators to identify the cost of climate change as a factor in market stability. Their report called out the costs of wildfires, storms, droughts, flooding—and climate litigation as market stressors.
Now that the industry is potentially facing multi-billion dollar judgments, the pressure will continue to mount on these companies from financial markets to divorce from their oil-only business model, Parenteau said.
"There is going to be a verdict and it's going to be big," he said. "The smart money people see that and they don't want to be holding the bag."
The industry's primary defense has been that climate change issues are not a matter for judicial review but rather of legislative remedy. The courts have largely disagreed, saying as a federal court of appeals did in a case filed by Baltimore, that local jurisdiction was proper. Although those rulings have given momentum to the cities and states, they still face formidable challenges by the industry.
Another possible showdown in the Supreme Court looms later this month when the court will consider whether to take on the jurisdiction question that could provide definitive guidance on the venue of these claims.
While the states, cities and counties, for the most part, want their lawsuits heard in state courts, the industry prefers the federal courts as a venue so that they can argue the Clean Air Act and other federal laws preempt any claim under state law that carbon dioxide emissions from fossil fuels cause climate change and related property damage.
'It is Not About Stopping Climate Change. It's About Delaware Surviving It'
Delaware's lawsuit against 31 fossil fuel entities and trade groups claims negligent failure to warn, trespass, public nuisance and multiple violations of Delaware's Consumer Fraud Act. It seeks monetary damages to compensate the state and punish the companies, including $10,000 per violation of the Consumer Fraud Act.
"Defendants have known for decades that climate change impacts could be catastrophic, and that only a narrow window existed to take action before the consequences would be irreversible," Democrat Kathy Jennings, the Delaware attorney general, says in the lawsuit
The complaint, which targets such oil giants as Exxon, Chevron and Shell, and the American Petroleum Institute trade organization, argues that changes to Delaware's environment are a "direct and proximate consequence of Defendants' wrongful conduct," and disproportionately affect communities of color and low-income communities.
At the heart of the lawsuit is the matter of who will pay for the mounting financial, environmental and public health costs of the climate crisis, Jennings said during a news conference announcing the lawsuit.
"It is not about stopping climate change. It's about Delaware surviving it," she said.
The lawsuit further blasts the industry for falsely claiming through advertising campaigns ... that their businesses are substantially invested in lower carbon technologies and renewable energy sources.
"In truth, each Fossil Fuel Defendant has invested minimally in renewable energy while continuing to expand its fossil fuel production ... None of Fossil Fuel Defendants' fossil fuel products are 'green' or 'clean' because they all continue to ultimately warm the planet," according to the lawsuit.
Shell and Chevron disputed the claims.
"These special-interest-promotedlawsuits designed to punisha few companies who lawfully deliver affordable, reliable and ever cleaner energyundermine real efforts to address the complex policy issues presented by global climate change," Chevron spokesperson Sean Comey said in an email. "There is no evidence Chevron misled the public about climate change. Those claims are false."
Shell spokeswoman Anna Arata said the courtroom is not the right venue to address climate change, and that change needs to come through "smart policy from government" supported by business sectors, including the fossil fuel industry, to address climate change.
"We fully support the need for society to transition to a lower-carbon future and we're committed to playing our part by addressing our own emissions and helping customers to reduce theirs," Arata said
API released a boilerplate response it issues in these cases. Paul G. Afonso, the American Petroleum Institute's chief legal officer and senior vice president, said in a statement: "The record of the past two decades demonstrates that the industry has achieved its goal of providing affordable, reliable American energy to U.S. consumers while substantially reducing emissions and our environmental footprint. Any suggestion to the contrary is false."
Charleston is the First Southern City to File a Climate Lawsuit
The Charleston lawsuit seeks to hold two dozen major oil and pipeline companies accountable for climate change damages to the city. The lawsuit claims their products and the spread of misinformation about fossil fuels have caused increasing and disastrous flooding.
South Carolina's largest city, Charleston is the first in the South to file a climate lawsuit.
Filed in the Court of Common Pleas in Charleston, the suit asks that Exxon, Chevron, Shell, BP and other companies to pay for the costs to keep the city from flooding.
"As a direct and proximate consequence of Defendants wrongful conduct described in this complaint, the environment in and around Charleston is changing, with devastating adverse impacts on the City and its residents," according to the lawsuit, which asserts six causes of action, including public and private nuisance, strict liability and negligent failure to warn, trespass and violations of South Carolina's Unfair Trade Practices Act
Flooding events have increased substantially in Charleston, from around four days per year around 50 years ago to nearly 89 days per year as of 2019.
The City has incurred significant costs on capital projects to address sea level rise, including rebuilding its aging Low Battery Seawall, installing check valves to prevent tidal intrusion on the City's storm drain system and redesigning and retrofitting its floodwater drainage system to keep up with increased flooding caused by sea level rise, including by constructing more than 8,000 feet of new drainage tunnels, according to the lawsuit.
City officials have estimated the cost of keeping up with rising sea levels at $2 billion.
Says Charleston's lawsuit: "The City seeks to ensure that the parties who have profited from externalizing the consequences and costs of dealing with global warming and its physical, environmental, social, and economic consequences, bear the costs of those impacts on Charleston, rather than the City, taxpayers, residents, or broader segments of the public."
DN 9/15/20 McConn flip 11th district so vote down felony re-enfranchise (fees = poll tax); 8 more judges this week
https://www.alternet.org/2020/09/donald-trump-says-ted-cruz-yes-that-ted-cruz-is-on-his-list-of-potential-second-term-supreme-court-picks
Patrick Svitek, The Texas Tribune
Sept. 9, 2020
“Donald Trump says Ted Cruz is on his list of potential second-term Supreme Court picks” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
p Donald Trump on Wednesday named U.S. Sen. Ted Cruz, R-Texas, as a potential nominee to the U.S. Supreme Court.
Trump included Cruz among 20 possible picks for the high court if Trump wins a second term in November and a seat later becomes open. The 20 new names come in addition to a group of prospective justices that Trump named during the 2016 campaign — and has since drawn from to fill two vacancies on the court.
Cruz’s name has come up before as a potential Supreme Court appointee, and he has said he isn’t interested. In a statement released moments after Trump’s announcement, Cruz was noncommittal and seemed to suggest he was satisfied with serving in the Senate.
“It’s humbling and an immense honor to be considered for the Supreme Court,” Cruz said. “In the Senate, I have been blessed to lead the fight to preserve our constitutional liberties —every day, to defend the rights of 29 million Texans — and I look forward to continuing to do so for many years to come.”
Trump also added a second Texan, James Ho, to his list of potential Supreme Court picks. Ho is a judge on the 5th U.S. Circuit Court of Appeals and former Texas solicitor general.
Since Trump locked down the GOP nomination in 2016, Cruz has occasionally fielded questions about the possibility of serving on the Supreme Court, given his background in constitutional law. He usually denies interest and says he is more interested in shaping the court as a U.S. senator and politician.
Four years ago, Trump’s commitment to naming the justices he could appoint to the court was one of the reasons that Cruz endorsed him after their bitter primary battle.
Ho, who succeeded Cruz as Texas solicitor general, has earned a reputation as one of Trump’s most hard-line picks for the federal appellate courts.
Ho has been pivotal in inching the 5th Circuit, already one of the country’s most conservative federal appellate courts, further right. He wrote that the Second Amendment has been treated as a “‘second-class’ right.”
In his very first writing for the court, Ho panned campaign donation limits, writing, “if there is too much money in politics, it’s because there’s too much government.” He suggested a long-serving federal judge had shown bias in allowing a subpoena of a religious group in a lawsuit over the handling fetal remains, decrying “the moral tragedy of abortion.” In March 2019, he misgendered a transgender plaintiff.
Another 5th Circuit judge with Texas ties, Kyle Duncan, is also on the list. Duncan, who is from Louisiana, is a former assistant Texas solicitor general.
Emma Platoff contributed reporting.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2020/09/09/ted-cruz-supreme-court-donald-trump/.
8. Cooked the Books on Asbestos
Asbestos is a highly toxic, naturally occurring chemical linked to a particularly deadly form of cancer called mesothelioma.An estimated 40,000 Americans die every year from asbestos-related diseases. Although the toxicity of asbestos is well understood, the EPA has never actually banned most uses. The EPA attempted a ban in 1989, but most of the rule was overturned by the Fifth Circuit Court of Appeals in 1991.
After Congress reformed TSCA in 2016, the EPA announced that asbestos would be one of the first 10 chemicals reviewed under the new law. Many hoped that this time, the EPA would finally ban asbestos.
Instead, when the EPA released its draft risk evaluation in May, it found that several uses of asbestos, including import of asbestos and asbestos-containing products and distribution of asbestos-containing products, did not pose an unreasonable risk. The EPA made its risk determinations by ignoring exposure from "legacy" uses of asbestos, such as old insulation and building tiles. Although in November the Ninth Circuit Court of Appeals ordered the EPA to fix this error, it has yet to do so.
Instead of banning asbestos, in April 2019 the EPA published a rule requiring notice and approval before manufacturers could resume using it in some applications the agency considered abandoned. However, leaked documents show that more than a dozen EPA staffers urged an outright ban on asbestos instead.
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human rights
https://www.scotusblog.com/case-files/cases/nestle-u-s-a-inc-v-doe/
Nestlé U.S.A., Inc. v. Doe
Petition for certiorari denied on January 11, 2016
| Docket No. | Op. Below | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|---|
| 15-349 | 9th Cir. | N/A | N/A | N/A | N/A | OT 2015 |
Issue: (1) Whether a defendant is subject to suit under the Alien Tort Statute for aiding and abetting another person's alleged violation of the law of nations based on allegations that the defendant intended to pursue a legitimate business objective while knowing (but not intending) that the objective could be advanced by the other person's violation of international law; (2) whether the “focus” test of Morrison v. National Australian Bank, Ltd. governs whether a proposed application of the Alien Tort Statute would be impermissibly extraterritorial under Kiobel v. Royal Dutch Petroleum Co.; and (3) whether there is a well-defined international-law consensus that corporations are subject to liability for violations of the law of nations.
same case?
https://ballotpedia.org/Nestle_USA_v._Doe_I
Nestlé USA v. Doe I is a case scheduled for argument before the Supreme Court of the United States during the court's October 2020-2021 term. The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. It was consolidated with Cargill v. Doe I.[[2]](https://ballotpedia.org/Nestl%C3%A9_USA_v._Doe_I#cite_note-2)
The case concerns the Alien Tort Statute.
HIGHLIGHTS
- The case:A group of Malian citizens ("claimants") filed a lawsuit under the Alien Tort Statute (ATS) against corporations including Nestlé USA and Cargill, Inc. In the lawsuit, the claimants alleged they were subjected to child slavery on cocoa farms in Côte d’Ivoire. The U.S. District Court for the Central District of California dismissed the case on the grounds that corporations could not be held liable under the ATS. On appeal, the 9th Circuit vacated the lower court's ruling.
- The issue:"1. Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute, 28 U.S.C. § 1350, may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity.
- Whether the Judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations."[[3]](https://ballotpedia.org/Nestl%C3%A9_USA_v._Doe_I#cite_note-questions-3)
- The outcome: The appeal is pending adjudication before the U.S. Supreme Court.
You can review the lower court's opinion here.
Timeline
The following timeline details key events in this case:
- July 2, 2020: The U.S. Supreme Court agreed to hear the consolidated cases.
- October 2, 2019: Cargill, Inc., the petitioner, appealed to the U.S. Supreme Court.
- September 25, 2019: Nestlé USA, the petitioner, appealed to the U.S. Supreme Court.
- July 5, 2019: The 9th Circuit reversed the district court's ruling in an amended opinion and denied the petition for rehearing.
Background
Initial complaint and appeal
A group of anonymous Malian citizens ("claimants") filed a class-action lawsuit under the Alien Tort Statute (ATS) against multinational cocoa suppliers, including Cargill, Inc., and food and beverage companies, including Nestlé USA. The claimants alleged that as children they were forced to work on cocoa farms in Côte d’Ivoire.[[4]](https://ballotpedia.org/Nestl%C3%A9_USA_v._Doe_I#cite_note-Cargill-4)[[5]](https://ballotpedia.org/Nestl%C3%A9_USA_v._Doe_I#cite_note-petition-5)
In 2010, the U.S. District Court for the Central District of California dismissed the lawsuit, holding the claimants (1) did not and could not allege the defendants "acted with the purpose and intent that their conduct would perpetuate child slavery in Ivorian farms" and (2) failed to show anything more than "ordinary commercial transactions." The district court also held that international law prevented ATS claims against corporate defendants.[[5]](https://ballotpedia.org/Nestl%C3%A9_USA_v._Doe_I#cite_note-petition-5)
On appeal, the United States Court of Appeals for the 9th Circuit vacated the district court's ruling in an amended opinion and remanded the case. The 9th Circuit held ATS claims could be brought against corporate defendants.[[5]](https://ballotpedia.org/Nestl%C3%A9_USA_v._Doe_I#cite_note-petition-5)
Second appeal
In 2016, the Malian citizens filed an amended complaint. The Central District of California dismissed the complaint, holding the claimants' focus was outside the United States, or extraterritorial. On appeal, the 9th Circuit reversed the district court's judgment, holding that (1) corporations can be sued under the ATS and (2) the claimants' complaints had a sufficient U.S. focus. The 9th Circuit also issued an amended order holding the claimants had standing.[[5]](https://ballotpedia.org/Nestl%C3%A9_USA_v._Doe_I#cite_note-petition-5)
Alien Tort Statute
The Alien Tort Statute (28 U.S. Code § 1350) provides:
| “ | The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.[[6]](https://ballotpedia.org/Nestl%C3%A9_USA_v._Doe_I#cite_note-quotedisclaimer-6) | ” |
Questions presented
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Setback to Industry, the Ninth Circuit Sends California Climate Liability Cases Back to State Courts
BY DAVID HASEMYER
https://insideclimatenews.org/news/26052020/ninth-circuit-ruling-california-climate-change-oil-industry
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220 intercept coos bay
But, if the agreement is renewed, it may be invalid under Oregon law. In 1998, the 9th Circuit Court of Appeals ruled against a similar arrangement in Klamath County, Oregon, where the sheriff’s department had entered into an agreement with the timber corporation Weyerhaeuser to provide security services on the company’s land.
“Providing specialized law enforcement services to Weyerhaeuser has no logical relationship to a sheriff’s statutory responsibility to ‘Defend the county against those who, by riot or otherwise, endanger the public peace or safety,’” the court ruled. “We are persuaded that a sheriff lacks the express or implied authority under Oregon law to enter into an agreement to provide security services for private entities.”
“The court was pretty clear in saying that Oregon law sets out the general authority for governing bodies, and these types of contracts between corporations and police agencies don’t fit into that general authority,” said Kelly Simon, a staff attorney at the Oregon chapter of the American Civil Liberties Union. “Contracts like this that are biased and create special-interest groups in government bodies — they are not authorized because the police’s authority is to protect the public fairly and equally.”
Zanni said the Coos County Sheriff’s Office has had contracts with federal agencies like the Bureau of Land Management as well as private timberland owners that occupy areas that the office otherwise wouldn’t have the resources to patrol. “Our contracts specifically say if there’s a law enforcement public safety need for that officer, we don’t care what you’re paying us for, he’s going to go handle that,” Zanni said.
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FAIL any mconn ?
https://www.ecowatch.com/juliana-v-united-states-tossed-2644863188.html
An appeals court tossed out the landmark youth climate lawsuit *Juliana v. United States* Friday, arguing that the courts are not the place to resolve the climate crisis.
The three-judge panel on the Ninth Circuit Court of Appeals agreed with the 21 young plaintiffs that the U.S. government had actively contributed to climate change by supporting a fossil-fuel based economy and that the young people had been injured by its actions, The Guardian explained. However, the majority ruled that the courts did not have the power to order a plan for government action to address the crisis, as the 12-to-23-year-old plaintiffs had requested.
"Reluctantly, we conclude that such relief is beyond our constitutional power," Judge Andrew D. Hurwitz wrote in the court's opinion. "Rather, the plaintiffs' impressive case for redress must be presented to the political branches of government."
[twt]
The decision raises the question of where young people can turn to ensure their futures are protected.
"The idea that their only recourse is to go to the very branches of government that are violating their rights when half of them can't even vote is a preposterous notion," the young people's lead lawyer Julia Olson told The New York Times.
In her dissent, Judge Josephine L. Staton agreed, criticizing her colleagues for "throw[ing] up their hands."
"Where is the hope in today's decision?" she wrote. "Plaintiffs' claims are based on science, specifically, an impending point of no return. If plaintiffs' fears, backed by the government's own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?"
The lawsuit was filed in 2015 by the 21 plaintiffs with the support of the nonprofit Our Children's Trust, according to Climate Liability News. It argues that by supporting a fossil-fuel based economy despite evidence it was contributing to climate change, the federal government violated the public trust and the young plaintiffs' constitutional rights to life, liberty and property.
For example, plaintiff Levi Draheim, 12, has had to repeatedly evacuate his home in Satellite Beach, Florida because of more extreme storms, according to The Guardian. Jaime Butler, 19, has been separated from her home and relatives in Navajo Nation because of water insecurity.
The federal government has tried to dismiss the case several times since it was filed, according to Climate Liability News. And Assistant Attorney General Jeffrey Bossert Clark told The New York Times that the government was "pleased with the outcome" of Friday's decision.
However, Our Children's Trust and the plaintiffs have vowed to keep fighting and to ask the full Ninth Circuit to review the decision, the group announced in a press release.
"We will continue this case because only the courts can help us," Draheim said. "We brought this lawsuit to secure our liberties and protect our lives and our homes. Much like the civil rights cases, we firmly believe the courts can vindicate our constitutional rights and we will not stop until we get a decision that says so."
If the full Ninth Circle refuses to hear the case, the group would then have to appeal to the Supreme Court, Climate Liability News explained...===
https://www.ecowatch.com/emergency-trump-epa-pesticides-2638979880.html
no lnx many
Trump EPA OKs ‘Emergency’ Use of Bee-Killing Pesticide on 13.9 Million Acres
Jordan Simmons Jun. 25, 2019 01:08PM EST POLITICS
More than 40 percent of insects could go extinct globally in the next few decades. So why did the U.S. Environmental Protection Agency (EPA) last week OK the 'emergency' use of the bee-killing pesticide sulfoxaflor on 13.9 million acres?
EcoWatch teamed up with Center for Biological Diversity via EcoWatch Live on Facebook to find out why. Environmental Health Director and Senior Attorney Lori Ann Burd explained how there is a loophole in the The Federal Insecticide, Fungicide, and Rodenticide Act under section 18, "that allows for entities and states to request emergency exemptions to spraying pesticides where they otherwise wouldn't be allowed to spray."
In a press release sent to EcoWatch, the Center for Biological Diversity stated:
The approval includes 2019 crops of cotton and sorghum in Alabama, Arkansas, California, Georgia, Kansas, Louisiana, Missouri, Mississippi, Tennessee, Texas and Virginia. Ten of the 11 states have been granted the approvals for at least four consecutive years for the same "emergency." Five have been given approvals for at least six consecutive years.
If an occurrence is happening six years in a row, does that justify an emergency?
"This administration has been grossly abusing this exemption to allow the use of this one pesticide calledsulfoxafloron a vast acreage year after year," said Burd.
Our biodiversity is at serious risk. For example, in Texas — where 5.8 million acres got emergency exemption to spray — more than 800 native bee species and eight species of bumblebees reside. It is also an important migration route for monarch butterflies.
"Monarch butterflies and eight species of bumblebees do overlap with Texas counties where there is sulfoxaflor spraying," said Burd. "Even at subacute, very low doses, sufoxaflor will have a very dramatic effect on bumblebee reproduction." The purpose of sulfoxaflor is to kill insects.
Farmers have only gotten away with spraying sulfoxaflor because they were granted emergency. The EPA has not approved the lethal insecticide sulfoxaflor to be used on sorghum because it is known to attract bees. At one point the EPA did allow the use of sulfoxaflor on cotton, however the U.S. Court of Appeals for the Ninth Circuit vacated the approval — the result of a lawsuit brought to them by beekeepers.
In a summary following the vacated approval in 2015, The U.S. Court of Appeals for the Ninth Circuit published conclusions:
The panel held that because the EPA's decision to unconditionally register sulfoxaflor was based on flawed and limited data, the EPA's unconditional approval was not supported by substantial evidence. The panel vacated the EPA's unconditional registration because given the precariousness of bee populations, leaving the EPA's registration of sulfoxaflor in place risked more potential environmental harm than vacating it.
..
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icn 619
A federal appeals court on Thursday threw out a lower court decision to halt construction of the Keystone XL pipeline. But several major obstacles remain to the controversial project's progress, ensuring that the much-delayed Keystone XL will likely not be built soon.
The Ninth Circuit Court of Appeals decision hands a victory, at least for now, to the Trump administration and tar sands oil interests that have sought to jump-start construction of the northern leg of the pipeline from Alberta to Nebraska.
President Barack Obama had decided in 2015 that Keystone XL should not be built, saying it wouldn't serve the U.S. national interest. But in one of his first acts in the White House, President Donald Trump signed an executive order reversing that decision and directing the State Department to issue a construction permit. The issue has been litigated ever since
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https://www.sfchronicle.com/news/article/Trump-s-sixth-appointee-to-Ninth-U-S-Circuit-13867904.php
https://www.latimes.com/politics/la-na-pol-senate-confirm-ninth-circuit-lee-trump-feinstein-harris-20190515-story.html
collins
he Senate confirmed Los Angeles litigator Kenneth Kiyul Lee to a California seat on the U.S. 9th Circuit Court of Appeals on Wednesday over the objections of Sens. Dianne Feinstein and Kamala Harris.
Harris and Feinstein have accused Lee of failing to initially disclose to the Senate Judiciary Committee his past writings decrying sexual harassment accusers, gay people, AIDS and affirmative action. They were uncovered by reporters and committee staff.
During his confirmation hearing in March, Republicans appeared satisfied with Lee’s apology for his youthful writings.
The final 52-45 vote fell along party lines.
Lee is the fifth Circuit Court nominee approved by the Senate over the objections of home-state senators since President Trump took office. Neither Harris nor Feinstein returned their “blue slips” for Lee’s nomination to signal their support for a judicial nomination in their home state.
Historically, failing to return the slips would have stalled a candidate’s nomination indefinitely, but Senate Republicans focused on confirming Trump’s court picks have trudged ahead confirming judicial nominees without the sign of support.
It’s a change in tradition that is likely to continue. Lee is the first of three men Trump nominated to fill vacant California seats on the 9th Circuit Court over Feinstein’s and Harris’ objections.
Lee, a South Korean immigrant, attended Cornell University as an undergraduate and earned a law degree at Harvard University. He worked on Capitol Hill and in the George W. Bush White House as associate counsel before entering private practice.
The Senate Judiciary Committee also approved the nomination of Los Angeles appellate attorney Daniel P. Collins in March, but a final Senate vote has not yet been scheduled.
Trump’s third 9th Circuit Court nominee, Daniel A. Bress, 39, a Washington-area partner with Kirkland & Ellis, was referred to the Judiciary Committee along with Lee and Collins.
Bress, born in California, has not lived in the state since high school. The state’s senators have questioned whether he has sufficient ties to California. His confirmation hearing has not been scheduled.
yikes omg
Republican-controlled Senate confirmed Daniel Collins to a lifetime seat on the 9th Circuit Court of Appeals Tuesday
Republican-controlled Senate confirmed Daniel Collins to a lifetime seat on the 9th Circuit Court of Appeals Tuesday. Collins has defended Big Oil companies like Shell and Occidental Petroleum against communities impacted by fossil fuel extraction and the effects of climate change. He has also refused to say whether the landmark Brown v. Board of Education ruling was correctly decided, and has filed briefs supporting the restriction of access to contraceptives through health insurance.
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omg
https://www.alternet.org/2019/05/attacks-on-federal-district-courts-are-the-perfect-distillation-of-whats-wrong-with-the-trump-presidency/
Here’s a proposed step towards the new autocracy that Donald Trump is promoting that we ought to stop in its tracks.
Vice President Mike Pence told the Federalist Society on Wednesday that the Trump administration intends to challenge the right of federal district courtsto issue rulings blocking nationwide policies, arguing that such injunctions are obstructing Trump’s agenda on immigration, health care and other issues. It’s a perfect distillation of what’s wrong about the direction of the Trump presidency. It is a call for disruption – again – of judicial procedures and jurisdictions, all with the intent to protect any policy announcement by an imperial White House to be questioned. And it is not the White House’s jurisdiction to change.
In effect, the policy being presented by Pence would require multiple court challenges to reach a nationwide effect. The whole point of a federal judiciary is the opposite.
That the courts have become the favored battleground for Trump critics is as much a reflection of the fact that Trump policies have been announced too often in violation of the Constitution, of standing law and procedures, is not a fault of the judicial system. It is an indictment of the Trump policy-making machinery.
Pence argued that nationwide injunctions issued by federal judges “prevent the executive branch from acting, compromising our national security by obstructing the lawful ability of the president to stop threats to the homeland where he sees them.” He said the administration wants to bring the issue to the Supreme Court “to ensure that decisions affecting every American are made either by those elected to represent the American people or by the highest court in the land."
Administration officials have complained that announced policies like a Muslim Travel Ban were blocked in the courts simply get in their way, Constitutional issues apparently be damned.
Simply put, Pence is saying that lower courts should not be allowed to block the government from enforcing a law even if that law is found unconstitutional — they should only be allowed to exempt the specific person or people who sued from the law, argued RawStory.com.
The Supreme Court has never addressed the nationwide extent of the injunction against the ban issued by lower courts because the justices upheld the ban in its entirety. Experts say that for the Supreme Court to issue a definitive ruling on nationwide injunctions, it would first have to rule against the administration on the underlying merits of the case before it. Only at that point could the court consider whether a lower court order should apply nationwide or only to the people who are challenging an administration policy.
Obviously, a nationwide injunction has the effect of stopping “a federal policy everywhere,” as argued in the travel ban case. An alternative is for a judge to issue an order that gives only the people who sued what they want.
In his remarks, Pence quoted from an opinion by Justice Clarence Thomas, who joined the majority opinion upholding the Trump travel ban last June, but also wrote separately to say nationwide injunctions “are legally and historically dubious” and that the high court would have to step in “if federal courts continue to issue them.”
Trump has long railed against district courts, especially the 9th Circuit, on the West Coast, for blocking his initiatives, including efforts to overhaul the nation’s immigration system.
Trump raised the courts issue at a Florida rally, saying, “Activist judges who issue nationwide injunctions based on their personal beliefs undermine democracy and threaten the rule of law.”
Ironically, Trump won a 2-1 ruling from the 9th Circuit just this week that allows the administration to make asylum seekers wait in Mexico for immigration court hearings while a court challenge continues.
Yes, there is an argument that lawyers go “forum shopping” for a believed-to-be friendly court. But adoption of such a ban on national injunctions could adversely affect cases with classes of individual plaintiffs as well. More importantly, these court challenges have become a necessary defense in an increasingly authoritarian presidency. Trump simply wants to eliminate all challenges to any policy he favors. This one ought to be stopped in its tracks.
5th added b/c 1st gop maj post trump?
...Russell Wheeler, a visiting fellow in the Brookings Institution’s Governance Studies Program, crunched the numbers on this in December and found that 19 of Trump’s 29 circuit judges were replacing judges selected by other Republican presidents. HuffPost updated his numbers:24 of the 36 circuit judges Trump has confirmed so far have replaced Republican picks.
What about the circuit court vacancies that Trump could still fill in his first term? Wheeler found in December that nine of 16 current and announced future vacancies were filled by Republican-chosen judges. HuffPost updated his numbers: Five of 10 current and future vacancies were or are still filled by Republican-chosen judges.
The lower court judges Trump are appointing will be the final deciders in the majority of federal cases, as the Supreme Court only takes 100 to 150 appeals from the roughly 7,000 annual cases before the 13 circuit courts.
These new judges are overwhelmingly young, anti-choice, anti-voting-rights conservative activists, often alumni of the hard-right Federalist Society — and many of them are flamboyant characters. John Bush, whom Trump seated on the Sixth Circuit, compared abortion to slavery. James Ho, on the Fifth Circuit, has suggested the wealthy should have the right to bribe regulators and accused judges who don’t agree with his hardline anti-abortion position of hating Christians. Don Willett, also on the Fifth Circuit, wants to bring back the Lochner doctrine, an extreme-right early 20th century judicial philosophy that holds that “contract rights” nullify virtually all laws regulating labor and businesses. Some of Trump’s judicial picks are so extreme and unqualified that even Senate Republicans rejected them, like Brett Talley, who defended the Ku Klux Klan in college writings.
While Trump’s ideological impact of the courts has advanced slowly so far, it is not as if there has been zero change — this month, the Third Circuit officially flipped to having a Republican majority.And while no other Democratic-majority appeals courts have enough vacancies for Trump to flip them yet, that could change if he wins a second term, and some of the older Democratic judges could retire or assume senior status. Then, of course, there’s the matter of Ruth Bader Ginsburg.
If the 2016 elections were a pivotal moment for the federal courts, the 2020 elections could be infinitely more so.
...
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==
https://www.alternet.org/2019/04/federal-judge-says-flint-water-lawsuit-actually-can-target-the-former-governor-meaning-he-may-finally-be-held-accountable/
A federal judge on Monday—who agreed that allegations of “conscience shocking” conduct claimed by plaintiffs were “plausible”—reinstated Michigan’s former Governor Rick Snyder as a defendant in a class action lawsuit by the victims of the water crisis in the city of Flintthat first captured national headlines in 2014.
After earlier removing Snyder from the suit, brought by city residents harmed by the poisoning of the municipal water supply, U.S. District Court Judge Judith Levy reversed that decision as she noted the plaintiffs had shown the allegations against Snyder and his fellow co-defendants “plausibly describe ‘conscience shocking’ conduct” as thepeople of Flint were stripped of 14th Amendment protections from bodily harm or injury.
The plaintiffs in the suit, Levy wrote in her ruling,
"plausibly state that the Governor acted indifferently to the risk of harm they faced, demonstrating a callous disregard for their right to bodily integrity. This indifference manifested itself in two ways.Initially, the Governor was indifferent because instead of mitigating the risk of harm caused by the contaminated water, he covered it up. In private, he worried about the need to return Flint to DWSD water and the political implications of the crisis. But in public, he denied all knowledge, despite being aware of the developing crisis.”
As a result, plaintiffs were lured into a false sense of security. They could have taken protective measures, if only they had known what the Governor knew. Instead, the Governor misled them into assuming that nothing was wrong. Governor Snyder’s administration even encouraged them to continue to drink and bathe in the water."
The legal team representing the plaintiffs welcome the judge’s determination....
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https://www.dailykos.com/stories/2019/3/26/1845313/-Trump-administration-asks-court-to-demolish-Affordable-Care-Act
Trump Justice Department has shifted its position on the Affordable Care Act, now asking a federal court to strike down the law entirely. Last year, Justice argued in briefs filed in a federal court in Texas that certain provisions of the law, including those protecting people with pre-existing conditions, should be invalidated. In December, the "intensely political" Judge Reed O'Connor went further, invalidating the entire law.
Now in appeal at the 5th Circuit, Trump’s Justice Department has decided to go with O'Connor's ruling. Previously, it had argued only that the law's consumer protections should be struck down, despite Trump's midterm-election declarations that "Republicans will totally protect people with Pre-Existing Conditions, Democrats will not! Vote Republican" and "I will always fight for, and always protect, patients with preexisting conditions. You have to do it. You have to do it." There is no Republican plan to replace Obamacare. There never has been. It is myth.
So what would be lost? Coverage for about 20 million people. Yes, that includes protections for people with pre-existing conditions, along with the subsidies that make buying insurance affordable for many families getting individual plans. Coverage for the millions of low-income people who are in Medicaid expansion states. People covered by their parents' plans until age 26. Basic primary care such as physicals and vaccinations available with no extra charge. Protections against caps on how much insurance will pay during a year, or during the duration of a policy. Important changes to Medicaid and Medicare would be gone, including the billions in savings on prescription drugs Medicare recipients have gained since the law passed. What would be lost is all that the law did, but because it's a "super statute," touching so many aspects of health care, it would have a massive, detrimental impact on the whole system.
"To erase a law that is so interwoven into the health care system blows up every part of it," said Sara Rosenbaum, a health law professor at the George Washington University School of Public Health. "And [the ACA] is a super statute. It has changed everything about how we get health care." There is no part of the whole system—nearly one-fifth of the nation's whole economy—that hasn't changed under the law. The economic effects should it be erased could be dire.
Even foes of Obamacare such as libertarian free-marketer Peter Suderman are calling foul. "By all appearances," he writes, "the Trump administration is taking a political position for political purposes, ignoring the strongest legal arguments in the process." That political purpose is to entirely erase the most significant achievement of President Barack Obama. Period. Because it's going to be political disaster for Republicans in 2020.
Trump might be feeling his oats after the fiasco Attorney General William Barr created with the Mueller report. This is him and Barr unleashed. And it will be his political undoing.
==
9th overturned
2nd 5-4 ruling
a major blow for immigrant rights, the Supreme Court ruled the government can detain immigrants with past criminal records indefinitely and without due process—even decades after their convictions. The 5-4 ruling Tuesday in favor of the government centers around a 1996 law that allows immigration officials to take immigrants into custody after they are released from jail—but without specifying a time frame. The ACLU, which brought the case on behalf of immigrants affected by the law, said, “[T]he Supreme Court has endorsed the most extreme interpretation of immigration detention statutes, allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge. We will continue to fight the gross overuse of detention in the immigration system.”
==
https://www.desmogblog.com/2019/02/02/climate-misinformation-researchers-california-communities-suing-fossil-fuels
Just in case fossil fuel companies had forgotten when and how much they knew about the impacts their products have had on the climate, a reminder came at them in court this week.
On January 29, six researchers studying climate misinformation filed one of eight friend-of-the-court briefs in the Ninth Circuit Court of Appeals supporting the California communities suing fossil fuel companies for climate damages.
The dozens of companies, which include a variety of oil, gas, and coal producers and refiners, such as Chevron, ExxonMobil, and Peabody, are trying to get the cases moved from state to federal court, where similar climate liability lawsuits from San Francisco, Oakland, and New York City have not fared so well. The Court of Appeals is lumping together six suits from California counties and cities while deciding where they should be tried.
Some of the top academics examining fossil fuel companies’ actions and communications around climate change were involved in filing the brief, which rather concisely summarizes the major take-aways from their research in its table of contents.
To sum up even more, fossil fuel companies:
- knew the risks of burning their products on the climate.
- worked proactively to cover up that knowledge and discredit climate science.
- tried to protect their own assets from climate impacts by using the very same science they sought to undermine in public.
The researchers filing the brief include Naomi Oreskes (co-author of Merchants of Doubt) and Geoffrey Supran of Harvard University, Robert Brulle of Brown University, Justin Farrell of Yale University, Benjamin Franta of Stanford University, and Stephan Lewandowsky of the University of Bristol, UK. They’re joined in this brief by the Center for Climate Integrity, an initiative that provides legal, scientific, and policy support for affected communities seeking climate damages from polluters.
The other seven supporting briefs filed the same day came from Senator Sheldon Whitehouse (Democrat from Rhode Island and vocal climate champion), climate and consumer advocacy nonprofits, climate scientists and scholars, states, and government groups. [vid]
Harvard historian of science Naomi Oreskes at a December 2016 rally calling on scientists to stand up for science.]pix
The reason social scientists and science historians decided to get involved in this legal battle, they write, is because these lawsuits in California center around the fact that the fossil fuel companies “affirmatively and knowingly concealed the hazards that they knew would result from the normal use of their fossil fuel products through misrepresentation about those products and deliberately discrediting scientific information related to climate change.”
In order to make things easy for the courts, these researchers created what is basically a highlight reel of these industry misrepresentations and disinformation campaigns in their 55-page brief.
It draws from fossil fuel industry records, such as the 1965 speech by the American Petroleum Institute CEO on the “catastrophic consequence” of carbon pollution.
Exerpt of API President Frank Ikard's 1965 speech on climate change and fossil fuels.
And cites investigations by journalists, such as the Inside Climate News team that uncovered what #ExxonKnew in its series “Exxon: The Road Not Taken,” and Amy Westervelt’s recent podcast Drilled, which chronicles the creation of climate denial.
Of course, the brief also points to the work of the researchers themselves, including Oreskes and Supran’s analysis of nearly four decades of Exxon internal and external communications, which found that the oil giant changed its tune on climate change depending on whether it was speaking privately or publicly.
...
==
https://www.ecowatch.com/chlorpyrifos-epa-ban-2594491287.html
Court Rebukes EPA, Orders Ban on Pesticide That Harms Kids’ Brains
In a scathing opinion, a federal court on Thursday ordered the U.S. Environmental Protection Agency (EPA) to ban chlorpyrifos, a toxic pesticide linked to brain damage in children.
The ruling by the Ninth Circuit Court of Appeals nullified the decision last year by then-EPA Administrator Scott Pruitt to cancel the agency's proposal to ban chlorpyrifos—an insecticide that in small doses can harm children's brains and nervous systems—from use on food crops.
Pruitt's reversal of the proposed ban came a few weeks after he met with the CEO of Dow Chemical Company, the world's largest manufacturer of chlorpyrifos, according to The Associated Press.
In the Ninth Circuit's opinion, released Thursday morning, District Judge Jed Rakoff blasted the EPA's actions, stating that there "remains no justification for the EPA's 'continued failure to respond to the pressing health concerns presented by chlorpyrifos,' which has now placed the agency in direct contravention" of federal laws regulating food and pesticides.
"Today's court decision is a huge victory for public health, especially that of children," said Melanie Benesh, legislative attorney for the Environmental Working Group. "By requiring the EPA to finally ban chlorpyrifos, the Ninth Circuit is ensuring that the agency puts children's health, strong science and the letter of the law above corporate interests."
The Ninth Circuit decision orders the EPA to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days....
==
==
https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Ninth_Circuit
United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is a U.S. Federal court with appellate jurisdiction over the district courts in the following districts:
- District of Alaska
- District of Arizona
- Central District of California
- Eastern District of California
- Northern District of California
- Southern District of California
- District of Hawaii
- District of Idaho
- District of Montana
- District of Nevada
- District of Oregon
- Eastern District of Washington
- Western District of Washington
It also has appellate jurisdiction over the following territorial courts:
Headquartered in San Francisco, California, the Ninth Circuit is by far the largest of the thirteen courts of appeals, with 29 active judgeships. The court's regular meeting places are Seattle at the William Kenzo Nakamura United States Courthouse, Portland at the Pioneer Courthouse, San Francisco at the James R. Browning U.S. Court of Appeals Building, and Pasadena at the Richard H. Chambers U.S. Court of Appeals.
Panels of the court occasionally travel to hear cases in other locations within the circuit. Although the judges travel around the circuit, the court arranges its hearings so that cases from the northern region of the circuit are heard in Seattle or Portland, cases from southern California are heard in Pasadena, and cases from northern California, Nevada, Arizona, and Hawaii are heard in San Francisco. For lawyers who must come and present their cases to the court in person, this administrative grouping of cases helps to reduce the time and cost of travel.
Contents
[hide]
- :{1:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{History and background:(style="display:table-cell"):}:
- :{2:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Controversy:(style="display:table-cell"):}:
- :{2.1:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Allegations of liberalism:(style="display:table-cell"):}:
- :{2.2:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Rate of overturned decisions:(style="display:table-cell"):}:
- :{2.3:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Size of the court:(style="display:table-cell"):}:
- :{3:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Current composition of the court:(style="display:table-cell"):}:
- :{4:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Vacancies and pending nominations:(style="display:table-cell"):}:
- :{5:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{List of former judges:(style="display:table-cell"):}:
- :{6:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Chief judges:(style="display:table-cell"):}:
- :{7:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Succession of seats:(style="display:table-cell"):}:
- :{8:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{See also:(style="display:table-cell"):}:
- :{9:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Notes:(style="display:table-cell"):}:
- :{10:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{References:(style="display:table-cell"):}:
- :{11:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{External links:(style="display:table-cell"):}:
...
Allegations of liberalism
According to the most current count, the Ninth Circuit has among the highest percentage of sitting judges appointed by Democratic presidents. Republicans argue the court is biased because of its relatively high proportion of Democratic appointees.[6]
Rate of overturned decisions
From 1999 to 2008, of the 0.151% of Ninth Circuit Court rulings that were reviewed by the Supreme Court, 20% were affirmed, 19% were vacated, and 61% were reversed; the median reversal rate for all federal appellate courts was 68.29% for the same period.[7] From 2010 to 2015, of the cases it accepted to review, the Supreme Court reversed around 79 percent of the cases from the Ninth Circuit, ranking its reversal rate third among the circuits; the median reversal rate for all federal circuits for the same time period was around 70 percent.[8]
Some argue the court's high percentage of reversals is illusory, resulting from the circuit hearing more cases than the other circuits. This results in the Supreme Court reviewing a smaller proportion of its cases, letting stand the vast majority of its cases.[9][10]
Size of the court
Chief among these is the Ninth Circuit's unique rules concerning the composition of an en banc court. In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for 29 or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a limited en banc review of a randomly selected 11 judge panel. This means that en bancreviews may not actually reflect the views of the majority of the court and indeed may not include any of the three judges involved in the decision being reviewed in the first place. The result, according to detractors, is a high risk of intracircuit conflicts of law where different groupings of judges end up delivering contradictory opinions. That is said to cause uncertainty in the district courts and within the bar. However, en banc review is a relatively rare occurrence in all circuits and Ninth Circuit rules provide for full en banc review in limited circumstances.[12]Critics of the Ninth Circuit claim there are several adverse consequences of its large size.[11]
All recently proposed splits would leave at least one circuit with 21 judges, only two fewer than the 23 that the Ninth Circuit had when the limited en banc procedure was first adopted. In other words, after a split at least one of the circuits would still be using limited en banc courts.[13]
In March 2007, Associate Justices Anthony Kennedy and Clarence Thomas testified before a House Appropriations subcommittee that the consensus among the justices of the Supreme Court of the United States was that the Ninth Circuit was too large and unwieldy and should be split.[14]
...
==
https://www.ca9.uscourts.gov/
As befitting International Women’s Day, an all-women appellate panel of the United States Court of Appeals for the Ninth Circuit heard oral arguments Thursday (March 8, 2018) at the William K. Nakamura U.S. Courthouse in Seattle. The panel consisted of Ninth Circuit Judges Johnnie B. Rawlinson of Las Vegas and Morgan Christen of Anchorage, Alaska, and, sitting by designation, Chief District Judge Nancy D. Freudenthal of the U.S. District Court for the District of Wyoming. As all-women panels occur infrequently, the court’s Seattle calendar was unusual in that another all-women panel heard cases the day before. Judges Rawlinson and Christen and, sitting by designation, District Judge Cathy A. Bencivengo of the U.S. District Court for the Southern District of California comprised that panel. The Ninth Circuit bench includes 23 active judges, 11 of whom are women, and 17 senior judges, two of whom are women.
==
https://www.ecowatch.com/salmon-water-dams-conservation-2555670156.html
Appeals Court Affirms Order to Spill More Water Over Dams to Help Salmon Survive
The Ninth U.S. Circuit Court of Appeals has sided with almost a dozen conservation and fishing organizations, the Nez Perce Tribe and the State of Oregon in their efforts to improve wild salmon and steelhead survival as the fish migrate to the Pacific Ocean.
Almost a year ago, in April 2017, U.S. District Judge Michael Simon ruled that federal dam managers on the Columbia and Snake Rivers have to meet higher spill requirements in the spring when baby salmon are migrating to the ocean—meaning they must allow more water to flow over the dams between April and mid-June, to help facilitate safe passage for young salmon.
http://www.alternet.org/food/local-governments-can-prohibit-ge-crops-says-us-court-appeals
U.S. Court of Appeals for the Ninth Circuit issued its decisions Friday on whether federal and Hawai'i state laws preempt Hawai'i counties' authority to regulate genetically engineered (GE) crops and pesticide use. Of significance to state and local communities throughout the U.S., the Ninth Circuit ruled that federal law—specifically,the Plant Protection Act—does not prohibit states and counties from passing local laws to regulate and ban commercially-grown GE crops.
"Today's decision to allow states and counties to ban or regulate GE crops is an important victory for GE-free seed sanctuaries and small communities and farmers around the country," George Kimbrell, senior attorney for the Center for Food Safety, said.
In granting its decision the court recognized potential harm to farmers and environment from the widespread planting of GE crops, asserting, "the cultivation and testing of GE plants raise several well-documented concerns." Notably, the court affirmed, "transgenic contamination has previously caused significant economic impacts on farmers of conventional, non-GE crops."
The court acknowledged as well that "the cultivation of GE crops also may raise environmental concerns, such as harm to beneficial plants and animals caused by the increased use of pesticides sometimes associated with testing and growing GE crops, the proliferation of 'superweeds' and other pests resistant to pesticides, and the reduction of biodiversity." The court went on to declare: "The regulation of commercialized crops, both of GE and traditional varieties, remains within the authority of state and local governments."
At the same time, however, the court ruled that under Hawai'i law, counties and municipalities do not have the authority to regulate GE crops (as some in other states do), and that Hawai'i state law places such authority in the hands of the State alone.
"We're disappointed that the court misinterpreted Hawai'i law and concluded the Hawai'i legislature decided Hawai'i counties lack any such authority," Earthjustice attorney Paul Achitoff said. "The legislature did not, and the decision leaves Hawai'i unprotected from the harms the Ninth Circuit acknowledged. We believe that when Hawai'i's state courts have an opportunity, they will reject the Ninth Circuit's conclusion on this point and allow Hawai'i's people to protect themselves, since the State certainly hasn't protected them."
The court also ruled that the U.S. Department of Agriculture (USDA) alone has the authority to regulate field trials and experimental GE crops; neither states nor local governments can ban or approve. This is particularly troubling to communities in Hawai'i, since the many field trials and associated pesticide use in Hawai'i poses significant risks to local citizens and the environment
"We are extremely disappointed with the ruling that some experimental GE field trials can only be regulated by USDA, and are considering all legal options. Most importantly, we continue to stand and fight with the people of Hawaiʻi against these chemical companies," Kimbrell said.
Attorneys with Center for Food Safety and Earthjustice, who represented local residents, conservation groups, and Hawai'i County in the proceedings, are analyzing the full scope of the court's decisions and will be considering options that would protect Hawai'i's people, farms and the environment.
"As a mother and a resident of Kekaha, Kauaʻi, I will continue to stand up and protect my family and my community," said Malia Kahale'ina Chun, a mother, educator and Native Hawaiian cultural practitioner. "It is our responsibility to insure that our keiki have access to clean air, clean water and to 'āina that sustains them."
==
Office of Legal Counsel
Bybee served as the Assistant Attorney General for the Office of Legal Counsel (OLC) in the United States Justice Department from November 2001 to March 2003.[12][13]
Torture memos
Main article: Torture Memos
DuringJay Bybee's tenure at the OLC, the CIA acting General Counsel John A. Rizzo requested a legal opinion on detainee interrogation. That request was routed to the OLC by the White House General Counsel Alberto Gonzales, who desired the "ability to quickly obtain information from captured terrorists and their sponsors."[14] The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking Al-Qaeda members captured outside the United States in ways some regard as torture. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in 18 U.S.C. § 2340. That section implements, in part, the obligations of the United States under the Geneva Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
Bybee signed that legal memorandum which endorsed "enhanced interrogation techniques" as lawful. These same techniques are viewed as torture by the Justice Department,[15] Amnesty International,[16] Human Rights Watch,[17] medical experts in the treatment of torture victims,[18][19] intelligence officials,[20] and American allies.[21] This memo has been the source of controversy; critics of his action have called for his impeachment or resignation.[22] Bybee and five others, known as the "Bush Six", were the subject of a war crimes investigation in Spain,[23] but the government decided against prosecution in 2011.
A memo declassified in 2012 indicates that some in the Bush State Department believed that the methods were illegal under domestic and international law, and constituted war crimes.[24] Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,[25] and U.S. Navy general counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo.[26] Philip D. Zelikow, former State Department adviser to Condoleezza Rice, in 2009 testified to the Senate Judiciary Committee studying the matter, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials attempted to destroy his memos alleging fault in Bybee's reasoning.[27]
Office of Professional Responsibility investigation
In July 2009, after a five-year inquiry, the Office of Professional Responsibility released a report, later modified by the Justice Department, saying Jay Bybee and his deputy John Yoo committed "professional misconduct"[28] by providing legal advice that was in possible violation of international and federal laws on torture.[29][30] The OPR initial report recommended that both Bybee and Yoo be referred to the bar associations of the states where they were licensed for further disciplinary action and possible disbarment.[31] David Margolis, Associate Deputy Attorney General of the Department of Justice, examined the OPR report and wrote that Bybee and Yoo had used "poor judgement"[32] but did not "knowingly or recklessly provide incorrect legal advice or ... provide advice in bad faith."[33]
Federal judicial service
Bybee was first nominated to the United States Court of Appeals for the Ninth Circuit, the largest U.S. appellate court, on May 22, 2002. The Senate recessed for mid-term elections without acting on the nomination, which was "returned without action" in November 2002 under Senate Rule XXXI, Paragraph 6.[34]
President George W. Bush resubmitted his nomination on January 7, 2003. The Senate Judiciary Committee reported favorably on Bybee's nomination by a 12-6 vote (10 Republicans and 2 Democrats for, 6 Democrats against) in late February and forwarded the nomination to the full Senate for consideration.[35] Senate deliberations took place on March 13, 2003.[36] The Senate confirmed Bybee's nomination by a vote of 74-19 the same day.[37] Bybee received his commission on March 21, 2003. Justice Sandra Day O'Connor administered the oath of office at the United States Supreme Court building on March 28, 2003.[38]
Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because the judge's conservative views would help to moderate "the most liberal court in the country."[39]
Some critics decried his confirmation, calling Bybee "an extremist who takes an overly limited view of federal power" and criticizing his "narrow view of individual rights", including abortion and gay marriage.[40]
Bybee was confirmed in 2003, more than a year before news of his role in the torture memos was revealed.[41] According to Senator Patrick Leahy, "If the Bush administration and Mr. Bybee had told the truth," regarding Bybee's role in the Torture Memos, "he never would have been confirmed."[41]
Significant opinions
On January 13, 2005, in a 2-1 decision, Bybee wrote for the majority in United States v. Bruce. This case further refined the rules for defining whether or not an individual is a Native American or an American Indian. The current two-prong Rogers approach requires that the individual's degree of Indian blood as well as his tribal or government recognition as an Indian be taken into consideration. The Court concluded that Violet Bruce was an Indian.[42]
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