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Monday
Aug102015

Supreme Court Tells EPA Cost Does Matter

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

 

The Environmental Protection Agency's Mercury and Air Toxics Standards (MATS) placed national limits on mercury and other toxic emissions from power plants. The agency projected MATS to prevent 11,000 premature deaths, 4,700 heart attacks and 130,000 asthma attacks each year.

What the EPA didn't project, however, was the cost effectiveness of enforcing MATS.

Twenty-three states and other petitioners challenged the Agency's refusal to consider costs of emissions reduction in a Washington D.C. circuit court, which sided with the EPA, then again at a D.C. Appellate Court which upheld the lower court's decision. But in June, the U.S. Supreme Court (SCOTUS) sided with the petitioners in Michigan v. Environmental Protection Agency, and remanded the case back to the Court of Appeals to reconsider its decision in light of SCOTUS guidance.

Mercury Cleanup Costs

The central question in this case pertains to the federal Clean Air Act, as amended in 1990. One of the amendments directs the EPA to study public health hazards caused by power plant emissions and to determine whether or not these facilities should be subject to regulation. The Agency must then decree certain floor standards for emissions based on the type of facility in question and on the top-performing 12 percent of those facilities in the category. Section 7412(d)(2) of the Act clearly directs the EPA to consider the costs of reducing emissions.

In 2000 the EPA concluded coal and oil burning power plants need regulation, and reaffirmed this decision in 2012. It issued a Regulatory Impact Analysis, estimating costs of regulation at $9.6 billion per year for the power plants, but did not fully estimate the benefits of emission reduction, which it estimated at $4-6 million.

The EPA found collateral benefits for regulation of the power plants, which would reduce particulate matter and sulfur dioxide in emissions. The Regulatory Impact Analysis estimated those benefits to fall between $37 and $90 billion per year – but these substances aren't covered under the Clean Air Act, and the Agency did not base its decree for regulation on these additional benefits.

SCOTUS's 5-4 Opinion

The Supreme Court's close decision centered on the sometimes ambiguous, yet sometimes particular, wording of the Clean Air Act. On the ambiguous side, §7412(n)(1)(A):

Congress instructed EPA to add power plants to the program if (but only if) the Agency finds regulation "appropriate and necessary"…. One would not say that it is rational, never mind "appropriate," to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.

More to the point, SCOTUS cited this:

Congress called for two additional studies. One of them, a study into mercury emissions from power plants and other sources, must consider “the health and environmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies.” §7412(n)(1)(B).

The EPA made several arguments, one being that the Agency shouldn't have to consider cost when first deciding whether to regulate power plants – costs become a factor in deciding how much regulation is necessary. SCOTUS responded, "By EPA’s logic, someone could decide whether it is “appropriate” to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system."

Respondents in Michigan asked the Court to consider the potentially $90 billion in collateral benefits EPA published in the Regulatory Impact Analysis, but SCOTUS refused to do so, saying the Court could only consider the "grounds on which the agency acted."

Significance

Court analysts can and will draw various lessons from the SCOTUS decision.

First, some will argue that this shows the Court majority is returning to a literal reading of statutes and following that literal approach despite policy arguments that administrative flexibility is needed (the above quote from the Clean Air Act says EPA must consider “the costs of such technologies”). However, it is arguably hard to square such a broad conclusion after the Court, in a majority opinion by Chief Justice Roberts, virtually admitted one could, for policy reasons, ignore the plain language of the Affordable Care Act stating that subsidies would only be available for an exchange set up by “the states”, not the federal government.

Perhaps a more accurate interpretation of the approach is that the Court’s conservative majority has decided the Court has historically given substantial deference to EPA and the agency needs a shot across the bow to force the agency to proceed more cautiously, and not assume it can count on such judicial deference in the future.

Yet perhaps a third conclusion is simply that the Court is severely split, roughly 5-4, between conservatives and liberals. The decisions referenced above were decided by one or two votes, with a conservative Justice or two occasionally swinging over to vote with the liberals.

Whatever the analysis, it does seem that EPA regulation may have entered a new era in which more restrictions are placed upon the agency’s scope of action.

 

Stephen T. Holzer is the Chair of our Environmental Practice Group and a business litigation attorney. Contact him by phone: 818.907.3299, or by email: sholzer@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Jul212015

Wacky Employee Claims: What Employers Can Learn From Outlandish Situations

Lawyer for EmployerWage and Hour Defense

 

 

by Nicole Kamm
818.907.3235

 

Think you've heard every cautionary workplace tale? Believe it or not, you probably haven't – the real question is, how prepared are you to handle wildly unusual complaints, extreme accommodation requests, and highly awkward situations?

We compiled some of the most interesting recent, real-life scenarios below. Sometimes, the employer acted reasonably, and in other situations, failed miserably. But each case serves as a reminder to employers: When making employment decisions, proceed with caution and advice from counsel. 

 

#4. Religious Discrimination Reeks

Religious discriminationThe Equal Employment Opportunity Commission (EEOC) filed suit against a New York company that forced employees to participate in a religion called "Onionhead." Employees were made to wear Onionhead buttons, dim the lights, join prayer groups and participate in other Onionhead-related activities. Employee resistance was futile, and in three cases led to humiliating treatment and eventual termination.

Employers: Avoid imposing your religious (or non-religious) beliefs on your employees. 

 

#3. Displeasing Prosthetics

An employee who worked for a snack food maker in Pennsylvania was considering gender reassignment surgery. She told a few coworkers about her potential surgery, and also confided that she was wearing a prosthetic penis at work to help her make a decision. The prosthetic was not visible, but one of her coworkers informed management, and the employee was soon fired.

The employee filed a federal civil rights complaint seeking back pay, compensation for suffering and humiliation, and punitive damages.  She claimed a male coworker who underwent hormone treatments and cross-dressed was treated more fairly, and her complaint alleged disparate and discriminatory treatment for being a female, and for being a female who identified as male.

Employers: The EEOC has determined that discrimination based on gender identity is sex discrimination under Title VII of the Civil Rights Act. California also makes it unlawful to discriminate based on gender identity or expression, under the Fair Employment and Housing Act. 

 

#2. Quid Pro Quo Grooming

An employee claimed that her supervisor made several sexual advances to her, and became "biased and angry" when the employee rebuffed those advances. She complained to her supervisor’s supervisor– but during this period the employee herself was written up several times for tardiness and inappropriate dress. Management decided to implement a work performance improvement plan for the employee, and the employee claimed no further discussions regarding her supervisor’s inappropriate behavior took place with upper management.

Then this happened: The supervisor called the employee to his office – the employee assumed it was to have a performance evaluation discussion. However, the supervisor asked the employee to extract an ingrown hair from his chin.  The employee refused. The supervisor then informed the employee that he could have her fired.

Shortly after this incident, the supervisor was instructed to terminate the employee, citing work performance issues observed by members of management.

The employee alleged age discrimination and sexual harassment in her claim brought to a federal court. The district court found that the ingrown hair request was not severe enough to be considered sexual harassment, though an Appellate court disagreed. The case was remanded back to district court.

Employers: Asking employees to perform personal grooming tasks is not appropriate; termination decisions should be based on legitimate business reasons and thoroughly documented. 

 

#1. Popping Positive for GINA Violations

This employer may have flushed over $2M down the sewer.

When management at a grocer's warehouse discovered that someone was defecating in the aisles and on top of canned goods, they immediately became concerned of potential health risks and took drastic action. The company ordered certain employees to submit to cheek swabs so they could identify the DNA of what a district court in Georgia called "The Devious Defecator."

Two employees submitted to the DNA test and were found to not have matching DNA of the defecator.

The employees later filed suit for violations of GINA, the Genetic Information Nondiscrimination Act. The employer contended the cheek swab testing did not provide medical information about the employees, and filed a motion for summary judgment. After losing on summary judgment, a jury awarded the plaintiffs $2.25M ($1.75M in punitive damages).

Employers: GINA clearly states it is "illegal for an employer to request, require, or purchase genetic information" of an employee, even if obtained for arguably reasonable business reasons.

 

What are the lessons learned from the bizarre claims made above? First, employers must be aware of the myriad laws governing the workplace. But more importantly, when these odd situations do come up, know to spot the issue, take proper action, and consult counsel with any questions. You can read more strange employee situations in a previous blog: Wacky Employee Claims.

 

Nicole Kamm is an Employment Defense Attorney. Contact her via email: nkamm@lewitthackman.com or directly by phone: 818-907-3235.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Jul152015

Swim Safety Tips: Pool Accident Prevention & Liability

Personal InjuryAccident & Injury Lawyer

 

by Andrew L. Shapiro

(818) 907-3230

 

School's out, temperatures are more or less climbing, and many are headed to the pool for some summer fun or just to seek relief from the heat.

But did you know that the Consumer Products Safety Commission (CPSC) reports about 300 drowning deaths for children under five years old, annually? In addition, approximately 2,000 other small children need treatment in hospital emergency rooms because of near-drownings.


Swimming Pool Injury Lawyer

That doesn't mean older children and adults are accident proof at the pool. And it doesn't mean pool-goers are only susceptible to drowning dangers.

Accidents at pools can occur because of electrical shocks from pool equipment, underwater lights, nearby audio or television equipment, and extension cords. Speaking of extension cords, watch out for tripping hazards. Additional slip-and-fall injuries may be caused by wet decks and tiles – more serious falls can result in concussions and potential drowning.

Pool chemicals can cause problems too – 25 children were injured recently, because a water park employee shut down a pump but did not turn off the chlorine system, causing a massive dump of chemicals into a wave pool.

Pool Accident Liability

When someone is hurt at a pool, whether public or private, the pool owner may be held liable because of premises liability, negligence, or products liability. The owner or operator must take reasonable precautions to prevent drownings and other injuries.

These precautions include installing complete fencing, posting warning signs, providing proper supervision and the proper maintenance of the pool, equipment and surrounding areas to keep visitors safe.

Many California cities have special ordinances requiring specific standards be met by pool owners. In Los Angeles, for example, there are city requirements to be met for zoning, building and glazing pools. Fencing must resist certain wind and seismic loads; drains more than 12 inches wide must be covered by approved anti-entrapment grates.

If the above requirements are not met by a pool owner and a drowning or other accident occurs, the owner may be liable for negligence per se, or negligence involving a violation of specific laws.

Pool Safety Tips

There are a number of steps both pool owners and pool users can take to avoid accidents and injuries. The basic ones include alert supervision, minimizing alcohol use, and learning CPR. But here are some more specific ones:

1. Watch, WATCH, WATCH! Children can go underwater very quickly, and can drown in less time than it takes to answer a phone call. Seventy-seven percent of drowned children were reported out of sight for less than five minutes, according to the CPSC.

Additionally, children should be supervised by swimmers. A mother in Texas recently lost three children because she couldn't save them from drowning at an apartment complex pool.

Pool Safety2. Ensure the number of people supervising is proportionate to the number of people swimming. A four year old in San Diego died after a pool party at a yacht club, where only one life guard was on duty for a kindergarten class.

3. Watch for Dry Drowning symptoms: Hours after a near-drowning incident, the victim may later succumb to "dry drowning" or "secondary drowning".  What's happening in these situations isn't an actual drowning, but a form of pneumonia – the inhaled pool water irritates the lungs, which then produce fluid.

Nearly drowned victims, or parents of these victims should pay close attention to someone having difficulty breathing, coughing or vomiting. The symptoms may appear shortly after the near-drowning incident, as in the case of a 10 year old boy who died of dry drowning recently; or up to 48 hours afterwards, according to some medical experts.

4. Keep children away from pool drains, which can create strong suction forces.

5. Ensure all pool equipment is properly maintained, and that all surrounding areas are free of obstacles that may cause pool users to slip, causing injuries to the back or limbs, head concussions and subsequent drownings.

Andrew L. Shapiro is the Chair of our Personal Injury Practice Group. Contact him by phone: (818) 907-3230, or by email: ashapiro@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Jun292015

New Bill May Put Motorcyclists' Lane-Splitting in Focus

Motorcycle Accident AttorneyMotorcycle Accident Lawyer

 

by Andrew L. Shapiro

(818) 907-3230

 

 

As a motorcyclist for 30 years, I must admit I did my fair share of lane splitting: Bypassing most of the stalled traffic on the 101 by traversing the white, dashed lines – waving a thank you to the handful of four-wheeled drivers who scooted over a bit to give me just a little more room as I did so.

Motorcycle AttorneyLane-splitting is considered dangerous, but in California it's not illegal. This is the only state where this is not illegal – which isn't to say that lane-splitting is legal, exactly.  

But motorcycle safety theories could be changing now. Motorcyclists who lane-split (at reasonable speeds) may be safer than those who do not, according to researchers at UC Berkeley's Safe Transportation Research and Education Center (SafeTREC). According to the study, excessive speed by motorcyclists caused more injuries for lane-splitters than other factors.

Thomas Rice, PhD, as principal investigator for the study, explains:

Surprisingly, we found that the difference in speed between the motorcycle and the surrounding traffic was a bigger predictor of injury than speed alone…Above a 15 mile-per-hour speed differential, the risk of injury rose significantly.

Of the nearly 6,000 California motorcycle accidents researched by SafeTREC, nearly 1,000 riders were lane-splitting at the time of the accident. The primary risk occurs when other drivers change lanes without checking for motorcyclists. Because lane-splitters are closer in proximity to the vehicles, both automobile drivers and cyclists have less time to perceive other's actions and make adjustments.

This would support Dr. Rice's comment regarding speed differentials between the riders and the drivers.

New Bill: No Wheelies Allowed

Bike Accident Lawyer

California Assembly Bill 51 regarding lane-splitting was introduced to the legislature last December by Bill Quirk (D-Hayward), Kansen Chud (D-San Jose) and Tom Lackey (R-Palmdale). It was passed by the Assembly in late May by a 53-11 vote.

Continued success of AB 51 as currently written could make it legal (as opposed to quasi-legal) for motorcyclists to lane-split under these conditions:

1. The motorcyclist must have both wheels on the ground.

2. The bike is not traveling faster than 50 mph.

3. The motorcyclist is not riding more than 15 mph faster than other traffic.

One problem with the bill as it is presently worded is the 15 mph differential. As we know in California, one lane of traffic could be moving much faster than the traffic in an adjacent lane.

On the other hand, the bill's writers say allowing motorcyclists to lane-split makes the riders less likely to be hit in a rear-end collision. Either way, motorcyclists whether lane-splitting or not, should always drive defensively and with the best possible protective gear.

 

Andrew L. Shapiro is the Chair of our Personal Injury Practice Group. Contact him by phone: (818) 907-3230, or by email: ashapiro@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Jun262015

Supreme Court: 14th Amendment Requires Recognition of Same-Sex Marriage

Gay Marriage LawCalifornia Bar Certified Specialist, Family Law

 

 

by Vanessa Soto Nellis
818.907.3274

 

 

 

 

In 1883 the Supreme Court of the United States (SCOTUS) ruled that couples engaging in interracial sex (Pace v. Alabama) are not in violation of the Fourteenth Amendment to the United States Constitution, which was ratified just 15 years previously. Amendment XIV addressed citizenship rights and equal protections in a post-Civil War era when former slaves struggled for recognition.

In 1967 SCOTUS went a step further in Loving v. Virginia, invalidating state laws prohibiting marriages between interracial couples.

Nearly 50 years later, the Supreme Court in a 5-4 decision re Obergefell v. Hodges, invalidated 13 state's laws prohibiting same-sex marriages. SCOTUS cited Confucius: "marriage lies at the foundation of government" and Cicero, "The first bond of society is marriage; next, children; and then the family."

…history is the beginning of these cases. The re­spondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. . . The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. . .it is the enduring importance of marriage that underlies the petitioners’ contentions.

History circles back. SCOTUS rulings for Pace, Loving and Obergefell relied heavily on the 14th Amendment which attaches a Due Process Clause, upholding the Bill of Rights, or first 10 amendments to the Constitution. In Obergefell, Justice Anthony Kennedy states that the Bill of Rights gives protections for "personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs."

Further, a judicial responsibility exists, which may sometimes be guided by traditional views:

That method respects our history and learns from it without allowing the past alone to rule the present. . .The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

The SCOTUS opinion for Obergefell is a landmark ruling. The respondents claimed there hasn't been enough rhetoric for the courts to make such an important decision. But the opinion announced today disagreed, listing countless referenda, debates, studies and an untold number of court cases. There have been more than 100 amici briefs ('friend of the court' filings) from businesses, labor unions, religious organizations, etc., all stating their opinions or agendas regarding same-sex marriage. There has been the Defense of Marriage Act (DOMA) defining marriage as a union between one man and one woman, and then the repeal of DOMA.

Despite the respondent's appeal to wait, the Obergefell opinion contends that the Constitution allows for asserting a fundamental right without waiting for legislative action. Therefore, the SCOTUS opinion concludes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family…Their (plaintiffs') hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions…The Constitution grants them that right.

 

Vanessa Soto Nellis a California State Bar Certified Specialist in Family Law. Contact her via email: vnellis@lewitthackman.com; or by phone: 818.907.3274.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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