Tracking the latest developments in the fight for a fair America
On Wednesday, March 25, the Supreme Court will hear arguments in Michigan et al. v. EPA et al., in which a handful of states, together with the National Mining Association and some industry representatives, challenge the Mercury and Air Toxics Standards issued by the Environmental Protection Agency.
The standards limit emissions of hazardous air pollutants—air toxics, such as mercury, arsenic and acid gases—from coal- and oil-fired power plants under section 7412 of the Clean Air Act. Most industrial sources of such toxics are automatically subject to regulation under section 7412, and have already reduced their emissions to comply with the law. But electric utilities secured a special exemption from Congress: before issuing those regulations, EPA was required to prepare a study of the “hazards to public health reasonably anticipated to result” from power plants’ toxic emissions after imposition of the Clean Air Act’s other requirements, and determine whether it was “appropriate and necessary” to regulate those emissions.
EPA completed the required study in 1998, and twice found it “appropriate and necessary” to regulate coal- and oil-fired power plants—once in 2000, and again in 2012 (in between, George W. Bush’s EPA unsuccessfully tried to undo the first of those findings).
On both occasions, EPA found overwhelming evidence that power plants endangered public health, and that the Act’s other programs would not mitigate that danger. Coal-fired plants’ mercury emissions, in particular, have effectively poisoned many of the nation’s bodies of water; all fifty states have issued mercury-related health advisories against consuming fish caught in their lakes and streams. Mercury is a potent neurotoxin, especially dangerous to children and pregnant women. Prenatal exposure to mercury results in impaired attention, loss of fine-motor function, as well as reduced language skills and verbal memory, substantially limiting children’s ability to learn and achieve. These harms are widespread; each year, several hundred thousand children are born in the United States who have been exposed to unsafe mercury levels in utero. EPA found that other toxics emitted by power plants—poisonous metals such as arsenic and chromium, and acid gases such as hydrochloric and hydrofluoric acid—also create serious threats to surrounding communities. And it found that power plants—coal-fired plants especially—are the largest source of mercury, arsenic, and other air toxics in the United States.
Because power plants’ air toxics pose a hazard to public health (as well as related harms to the environment), and because other provisions of the Clean Air Act would not address that hazard, EPA found that it was “appropriate and necessary” to regulate power plants.
The petitioners contend that the agency was also required to consider the costs of regulation to industry. According to the petitioners, EPA produced a regulation that costs industry $9.6 billion, to achieve $4-6 million in benefits. A clear example of the job-killing EPA regulations that the coal industry and its allies have been warning us about, no?
Well, actually, no.
First, regarding those “$4-6 million” in benefits. This rule’s public health benefits are estimated to be worth as much as $90 billion. EPA estimated that, when they go into effect, the standards will prevent 11,000 premature deaths, as well as over 5,000 emergency room and hospital visits, and 130,000 cases of aggravated asthma each year. According to the economic review prepared for the White House’s Office of Information and Regulatory Affairs, the standards will produce health benefits worth more than $33-90 billion to the public, dwarfing their estimated cost of $9.6 billion to industry.
How do the petitioners shrink $33-90 billion to $4-6 million? First, they replace the actual consequences of the rule with a narrow slice of what they term legally “relevant” benefits: just those that EPA specifically attributed to reductions in mercury and other air toxics. But in order to reduce their emissions of air toxics, power plants must also reduce emissions of other pollutants. Toxic metals, for example, are part of the soot emerging from power plants’ smokestacks; to control those metals, the plants must reduce their soot pollution. Such reductions will create significant improvements in public health that extend beyond the neurological and cancer-related benefits of reducing air toxics. While the petitioners may deem them legally irrelevant, those benefits are real, and massively consequential; no sensible assessment of the standards’ results could ignore them. To adopt petitioners’ claim that EPA has produced an unreasonable regulation, the Court will have to adopt a decidedly unreasonable view of the rule’s costs and benefits.
And even as to the rule’s benefits specific to mercury and air toxics, no one, aside from the petitioners, suggests that they are worth a mere $4-6 million. That figure reflects only those mercury- and toxic-specific benefits of the rule that EPA could quantify and reduce to a dollar figure. But EPA made very clear that most of air toxics’ harms—such as the loss of unborn children’s mental and physical abilities—could not be quantified or monetized (nor, one imagines, might the public be comfortable with an agency purporting to affix a dollar figure to the value of their child’s intelligence).
Petitioners’ claim of a “cost blind” regulatory process tells a similarly incomplete story; just because EPA didn’t consider costs when making its threshold “necessary and appropriate” finding doesn’t mean the Agency ignored costs. After EPA decided that it was “necessary and appropriate” to regulate coal- and oil-fired power plants, EPA went on to decide how stringent those regulations should be, under the standard-setting criteria contained in the rest of section 7412. Those criteria are not cost-blind; they contain explicit instructions as to how and when EPA is to consider costs.
Section 7412 also limits EPA’s ability to expose the public to toxic pollution in order to spare industry’s pocketbook. EPA cannot, for example, set standards that demand less than what the cleanest currently operating plants are already achieving. Those limits reflect Congress’ judgment as to the grave public health harms posed by air toxics—such as cancer, and neurological damage to infants—and the regulatory burden appropriate to reduce those harms. The question, in other words, isn’t whether EPA was free to ignore costs; the agency addressed costs in the same manner as it has for every other industrial source of air toxics. Petitioners want EPA to ignore the conditions Congress placed on its consideration of costs, in favor of its own opinions as to what might be “appropriate”—something the agency properly refused to do.
Finally, a practical note. The standards become effective on April 16, 2015. Though some plants have obtained compliance extensions, most have adopted the controls necessary to meet the standards. According to the Energy Information Administration, by the end of 2012, 64 percent of the coal-fired power plants in the United States had already installed control equipment sufficient to comply with the standards. The results have hardly been catastrophic; in fact, the electric utilities sector has been growing as the compliance deadline gets closer (it has added over 5,000 jobs since October 2014). Whatever the Court decides, reality has passed its verdict: Big Coal’s claims of economically disastrous, job-killing EPA regulations have no basis in fact.
Sanjay Narayan is a managing attorney with the Sierra Club’s Environmental Law Program. He is one of the lawyers representing the respondents American Academy of Pediatrics, et al. in the case.
AFJ Justice Programs Director Michelle Schwartz testifies today at a public hearing in Newark, N.J. on forced arbitration. The hearing was called by the Consumer Financial Protection Bureau. CFPB released a study of forced arbitration today – and CFPB has the power to prohibit the practice. This is Schwartz’s testimony:
My name is Michelle Schwartz, and I am Director of Justice Programs at Alliance for Justice. I was born and raised in nearby Livingston, and I was Senator Lautenberg’s Deputy Chief of Staff, so I’m very happy to be with you here in Newark.
On behalf of Alliance for Justice’s more than 100 member organizations working for a fair and just society, thank you for conducting this comprehensive study of forced arbitration. The study confirms what we have long suspected—forced arbitration allows companies to evade accountability when they wrong consumers.
Alliance for Justice recently released a short documentary, Lost in the Fine Print, that demonstrates the harm forced arbitration causes for everyday Americans.
It tells the story of Debbie Brenner, who was cheated by a for-profit college that took her student loan money, but failed to live up to its promises of quality instruction and job placement. When Debbie and her fellow students tried to sue, they were forced into arbitration because of a clause in their enrollment form they never read and certainly didn’t understand. In fact, a recruiter for the college admitted even he didn’t understand what the clause meant. But that didn’t stop an arbitrator from deciding the case against the students—and ordering them to pay hundreds of thousands of dollars for the school’s legal fees.
Lost in the Fine Print also tells the story of Nicole Mitchell of West New York. Although Nicole’s case dealt with employment discrimination, her experience was instructive for all who face forced arbitration. The arbitration was conducted in secret, Nicole never even got to meet the arbitrator who decided her fate, and she can never appeal.
Debbie and Nicole were unusual in that they ever even went to an arbitrator. As your study shows, the vast majority of wronged consumers never make it that far. Often, that’s because the amount they could possibly recover for the real harm they’ve suffered pales in comparison to the cost of bringing an individual arbitration.
That was true for Alan Carlson, whose story we also tell in our film. Yet the Supreme Court upheld American Express’s forced arbitration clause when Alan tried to sue over unfair credit card fees. The Court did so even while acknowledging that nobody in their right mind would actually bring an individual arbitration over the loss Alan suffered—essentially immunizing companies like American Express.
I’ve shown our documentary everywhere from national conferences to law school classrooms to tenant association meetings. Every time, I get two reactions: First, people can’t believe they didn’t know about forced arbitration. And second, they want to do something about it.
This study will go a long way to educating more people about this pernicious practice. But even more importantly, you have the power and obligation to actually do something about it by prohibiting forced arbitration for all consumer financial products. On behalf of all our members, we urge you to do just that without delay.
On Tuesday The Legal Intelligencer (subscription required) noted how Third Circuit nominee Judge L. Felipe Restrepo, currently a district court judge in the Eastern District of Pennsylvania, has been waiting for a confirmation hearing since his nomination in November 2014.
Judge Restrepo was recommended for nomination by his two senators, Democrat Bob Casey and Republican Pat Toomey. The same was true back in 2012, when he was nominated to the district court and eventually confirmed by the full Senate with a voice vote.
This delay exacerbates an already pressing need for more judges in Pennsylvania. There are currently five federal judicial vacancies in Pennsylvania, including one on the Third Circuit Court of Appeals, one in the Eastern District, and three in the Western District. Each of the district court vacancies has been empty for more than a year and does not even have a nominee. The Third Circuit vacancy, to which Restrepo was nominated, has been listed as a “judicial emergency” by the Administrative Office of the U.S. Courts—meaning the court does not have enough judges to handle its caseload. Adding to the problem, another Third Circuit seat in Pennsylvania is expected to open in July.
And yet, a spokesperson for Senate Judiciary Committee Chairman Chuck Grassley, R-IA, told The Intelligencer that she “couldn’t even estimate” a timeframe for Restrepo’s confirmation hearing.
Judge Restrepo is an exceptional nominee who should be processed through committee and confirmed without further delay. Among his many impressive qualifications, Judge Restrepo would be the first Third Circuit judge with experience working as a public defender, adding much needed professional diversity to the federal bench.
- AFJ’s full report on Judge Restrepo’s background can be found here
On March 4, the Supreme Court will hear oral arguments in King v. Burwell. The plaintiffs in this case are challenging the federal government’s ability to provide tax credits to consumers to help offset the cost of health insurance premiums in states that have not set up their own health insurance marketplaces (also known as exchanges) under the Affordable Care Act (ACA).
The parties in this case are the government and the plaintiffs who claim that the ACA harms them. Those whose lives and livelihoods have been saved by the ACA’s premium tax credits have been left out entirely. Yet an Urban Institute study found that, if the court rules in favor of the plaintiffs, 9.3 million people could lose access to health insurance under the Affordable Care Act. Families USA has captured some of their stories in our new interactive video.
Congress intended to make tax credits available in all states
The health reform law effectively gave states the option of either establishing their own insurance marketplace or letting the federal government (Healthcare.gov) run the marketplace for them. Those who make between 100 and 400 percent of the poverty line receive tax credits to offset the monthly premiums if they buy insurance on these exchanges. The challengers say that, because one section of the law concerning these credits refers to an “exchange established by the state,” no assistance should be available for those who obtain insurance through Healthcare.gov.
The underlying arguments of the plaintiffs are deeply flawed. A reading of the entire statute and its legislative history makes clear that Congress intended to make these tax credits available in all states.
More than 30 friend-of-the-court briefs make this very argument. In one brief, the members of Congress who wrote the law say that they never intended the assistance to be limited to state-run marketplaces. In another brief, 22 states argue they were never notified that the availability of tax credits could be restricted based on the type of marketplace a state had. Were there such a restriction, the Constitution would require that they know of it,
The real issue: Millions of consumers would lose their health insurance
However, the legal arguments belie the true debate behind this case: Should millions of consumers be denied affordable health insurance? Consumers are often overlooked in the legal wrangling over King v. Burwell.
For example, Lori Z. of Rosendale, Wisconsin, is recovering from breast cancer. She is also a small business owner. Before the ACA’s premium tax credits were available, money was tight, but she still had to decline some big business orders because she was undergoing treatment. Once she became eligible for tax credits, which save her $230 in monthly premiums, she could focus on her company. Lori told us, “Having the subsidy gave me peace of mind so that I wasn’t living from paycheck to paycheck. Now I’m able to invest in my own business again.”
David Tedrow, who lives in Durham, North Carolina, is also grateful for the ACA’s premium tax credits. Without them, he wouldn’t be able to buy health insurance. David is a liver transplant survivor and, before the ACA was passed, he was in danger of losing his place on the transplant list because of the cost of insurance. He still has to pay for expensive medication.
In a column for The Washington Post, he wrote: “Bottom line, without insurance and the subsidy I would simply die, because I could not afford my drugs and my body would reject my liver.”
Families USA is helping spread the word about stories like these, and we invite you to check out our interactive video here.
Ben D’Avanzo is government affairs associate and Claire McAndrew is private insurance program director for Families USA.
On Monday, the Supreme Court heard argument in a prisoner civil rights case, Coleman-Bey v. Tollefson. The issue under review is how best to interpret the “three-strikes” provision of the Prison Litigation Reform Act (PLRA). This statute, passed in 1996 as part of the Newt Gingrich “Contract with America,” sharply limited court access for prisoners in myriad ways. Coleman-Bey is a small case, relevant to very few prisoners and very few cases. It’s about a stand of trees in a pretty big forest. The forest-level summary is that the PLRA has cut the civil rights litigation rate per prisoner by more than half since 1995. The federal courts are playing a far lesser role in remedying prisoner civil rights violations than they used to.
Here’s the key chart, taken from one of my articles (and shared with the Supreme Court in an amicus brief on behalf of several dozen professors, including me). It shows the steep drop in federal civil rights filings per prisoner in the late 1990s, and the plateau since. I have argued that even at prisoner litigation’s peak, what people used to call the “flood” of prisoner lawsuits was, in actuality, a flood of prisoners. But whether or not you agree, it’s clear that the flood has abated:
Coleman-Bey deals with 28 U.S.C. § 1915(g), part of the federal in forma pauperis statute, which governs when filing fees are waived. Most indigent plaintiffs in federal court are exempt from the filing fee—currently $400 in district court, $500 in the courts of appeals. However, prisoners are different; even if they qualify as indigent (as most do), they are nonetheless required to pay the full amount of filing fees, over time, with the money levied from their prison account. This is the same account prisoners use to pay for postage, hygiene items, extra food, and the like. So where in forma pauperis status for a non-prisoner exempts that plaintiff from certain expenses, the same status merely allows a prisoner to avoid pre-payment of fees, but not the fees themselves.
In the provision at issue in Coleman-Bey, Congress further clamped down on prison litigation. Even the limited payment-but-no-prepayment version of in forma pauperis status is not available to prisoners who are deemed too-frequent, and too-unsuccessful litigants. The statute provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [that is, in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Thus prisoners are allowed three “strikes” – dismissals of an action or appeal on the grounds that it is frivolous, malicious, or fails to state a claim – before they are barred from the watered-down version of indigent court access otherwise available to them.
The issue in Coleman-Bey is whether a district court’s dismissal of a lawsuit counts as a strike while that dismissal is still pending on appeal. Eight circuits have sided with the prisoner and said no; the Sixth and Seventh Circuits have taken a stricter view.
I’m not going to recap the Supreme Court oral argument at any length: Steve Vladeck does a terrific job of that over on SCOTUSBlog. As he explains, members of the Court seemed to find the statutory language ambiguous on this point, and seemed concerned about the consequences of ruling for the prisoner. A prisoner who just incurred his third strike in the district court would have a kind of “use it or lose it” moment, a couple of the justices worried out loud, while that order was pending on appeal, and might therefore file lots of cases.
What I want to add here is some strenuous skepticism about this concern. Just in the abstract, it seems highly unlikely that a prisoner with a pending third strike would think of the pending period as a free window for additional frivolous filings. After all, the prisoner would eventually have to pay a full filing fee for each filed case.
And experience confirms the point. As the amicus brief cited earlier argued, there is no sign at all that the circuits where a dismissal has been counted as a PLRA “strike” only upon appellate finality experienced higher rates of prisoner litigation after adopting that rule than before. Conversely, the Seventh Circuit did not experience a drop-off in prisoner lawsuits after adopting the anti-prisoner rule.
Here’s the data on filings per 1,000 prisoners, by circuit, from 1990 to 2012 (the latest year for which filings data are available):
7th Circuit: Anti-Prisoner Rule
Other Circuits (Pro-Prisoner Rule Announced before 2011):
The point is, there’s really no reason to be worried about the impact on court dockets of the mildly pro-prisoner rule urged by the plaintiff in Coleman-Bey. If anything, the worry should be that indigent prisoners’ obligation to pay $400 to vindicate their civil rights might deter them from seeking such vindication.
Margo Schlanger is the Henry M. Butzel Professor of Law at the University of Michigan, and the founder and director of the Civil Rights Litigation Clearinghouse. Follow her on twitter at @mjschlanger.