Legal Docket: Who has power?

NICK EICHER, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 26th of November, 2018.

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time now for Legal Docket.

But before I get to cases, I want to mention an interesting piece I came across while doing my research.

It was on a legal blog devoted to the Supreme Court, called SCOTUSblog. The piece identified a trend among legal theorists on the left. The idea is that progressives would do well to avoid the Supreme Court, now that it has a solid conservative majority.

EICHER: Hmm. How do you avoid the Supreme Court, though? Seems like every major question has to be resolved there. That’s why the nomination and confirmation process is so fraught.

REICHARD: Well, yeah. But the point of this piece was that the legal left is now talking among themselves about avoiding litigation. In the past, there was a good chance to advance a cause. And the results were there, especially moral-revolution stuff.

But now, they’re just as likely as not to get a negative result codified into Supreme Court precedent. Negative from a progressive standpoint, I mean. So the wiser course of action for them is the slower approach of the more democratic processes. Using more local means to get your way.

Justice Ruth Bader Ginsburg put it this way: it’s usually better to resolve things that way, than forcing change before people are ready. Let the democratic process play out.

She’s actually said that she regretted Roe v. Wade for that reason.

So I thought I’d pass along that little tidbit.

EICHER: Alright, well, two cases today and both of them involve the environment in one way or another.

REICHARD: Yes, in a way. It’s the backdrop to more basic legal questions over who has control.

That’s often the real struggle in court: who has power?

In this first case, the setting is Virginia. That’s where one of the world’s biggest deposits of natural uranium lies. The land has been in the same family since 1785, and now a man named Walter Coles owns it. He wants to mine the estimated 119 million pounds of uranium on his land, as does a neighbor.

EICHER: But he can’t mine it, nor can the neighbor.

And the reason is that Virginia lawmakers banned uranium mining in 1982. It came on the heels of the partial meltdown of the Three Mile Island nuclear plant in Pennsylvania. That happened back in 1979.

The mine owner tried for years to persuade legislators to lift the ban, but he failed to do that.

REICHARD: So, he changed tactics. The mine owner now challenges the state legislature’s authority to ban uranium mining in the first place.

Federal law regulates the generation of nuclear power in the United States. The agency that oversees all that is the Nuclear Regulatory Commission. The NRC has authority over storage and disposal of spent fuel, among many other aspects of nuclear management.

The mine owner says the ban on uranium mining in his state must not supercede federal law. He argued the state lawmakers’ reason for the ban is based on unwarranted fear of potential radiation. And that’s supposed to be the province of the NRC.

At the Supreme Court, Virginia argued the concern is strictly a state concern. The court need not inquire into motivations, either good or ill. That was the argument of Virginia’s lawyer, Toby Heytens. But Justice Stephen Breyer pushed back on that. Let’s listen.

BREYER: Because you don’t know people’s motives. You don’t normally look into that. Motives can be backward looking. He did it out of revenge…When you say don’t look at purpose, there I get off the boat because I think that’s our job as a court in—in a relevant case…

REICHARD: Lawyer for the mine owner, Charles Cooper, argued motivation is important. Cooper said, the way Virginia lawmakers went about this ban looks very much like a ruse to get around the law. They were really worried about storing radioactive waste. But that’s for the feds to regulate—under federal law.

Justice Sonia Sotomayor wondered in this exchange just how a ruse can even be discovered.

SOTOMAYOR: Is this going to require deposing every single legislative member?

COOPER: No, Your Honor.

SOTOMAYOR: Because what do you look at? In a lot of these things, people just vote. They don’t say why. Or they do what one of my colleagues suggested, they give mixed motives…

REICHARD: But Heytens, again arguing for Virginia to uphold the ban on uranium mining, had to overcome Justice Breyer’s persistent questioning as to motive. Before I let you listen, let me define a term. You’ll hear Justice Breyer talk about “tailings.” That means the waste from mining, including radioactive bits.

BREYER: A good lawyer, like you, and he finds a different area, and it just turns out that the regulation in this different area will stop them from ever having tailings. And that’s why they did it. Okay? So—so that’s my problem.

HEYTENS: Just—let me try this again, Justice Breyer. When we’re talking about a tailings facility, we’re in an area of overlapping  authority because NRC regulates tailings management.

REICHARD: Justice Brett Kavanaugh had done his homework on the process of mining uranium. He mentions milling, and that’s the process of taking chemical out of uranium on its way to becoming fuel. Heytens’ argument didn’t make sense to him.

KAVANAUGH: But when you’re regulating mining, you’re always regulating milling because you have the two together, but you can’t regulate milling as you acknowledge, but the two are interlinked in a way that I’m not sure you can disaggregate in the way you’re doing.

HEYTENS: Justice Kavanaugh, I understand that conceptually we—we could have a metaphysical debate about whether you can separate mining and milling and whether—

KAVANAUGH: It’s—in the real world, it’s not separated.

HEYTENS: Well, Justice Kavanaugh, in the statute, it’s separated. And in NRC’s judgment, they’re separated.

REICHARD: Just to keep all the players straight, again, NRC is the Nuclear Regulatory Commission. So now we’re back to what the mine owner’s lawyer Cooper was getting at: telling the truth. Justice Ruth Bader Ginsburg got at it this way.

GINSBURG: Suppose Virginia had said, ‘We think that the extraction is a dangerous activity, so we are justifying this ban on mining to protect the workers from the hazards associated with mining, not with milling or tailing, just mining. Then I take it you would lose, right?

COOPER: I would lose, Your Honor, yes. I would lose if that was the state of Virginia’s genuine purpose.

But it is not the genuine purpose, so Cooper argues his client should win. The real reason is radiological safety, and that is for the feds to regulate, not states.

If the mine owner prevails, he won’t be able to start operations immediately. It’ll take time to get up to speed again. More legal proceedings will be needed.

If the ban is upheld, many others will be happy. Friend of the court briefs cite the unpredictable nature of mining, including digging and blasting, that renders surrounding business untenable, tourism and motorsports among them.

This is a tough one to predict: I don’t see a clear majority leaning one way or the other here.

This last case may sound familiar to you. It’s take two for the man from Alaska who wants to use his hovercraft on the rivers of his state. John Sturgeon challenges the authority of the National Park Service to ban this mode of transportation.

During the first go-round, Sturgeon narrowly won, but the case was sent back to the 9th Circuit for a fresh analysis under the federal law known by the acronym ANILCA. A-N-I-L-C-A, the Alaska National Interest Lands Conservation Act. But the 9th Circuit ruled against Sturgeon again, saying the National Park Service can ban hovercraft anywhere they want, because it owns the water rights to rivers running through national parks.

So Sturgeon is challenging that reasoning. The feds don’t own these waters, so the Park Service can’t claim authority over them. The state owns the waters and this is a matter of state sovereignty bargained for almost 40 years ago.

Sturgeon’s lawyer, the quite understated Matthew Findley, faced an early challenge from Justice Elena Kagan. Her question assumes the fact that the federal government owns more than 60 percent of Alaska.

KAGAN: You don’t think it makes any difference if there are public lands on both sides of a river? In other words, both banks of a river are public lands, but still the federal government cannot regulate the river running through those lands?

FINDLEY: The federal government may; the Park Service may not. That was a power that was not delegated to the Park Service. … Particularly in that area of Alaska where there are no roads, the Yukon and the Kuskokwim River are the arteries of commerce that’s how folks get to and from villages. That’s how they go to vote. That’s how to buy groceries.

REICHARD: Chief Justice John Roberts seemed sympathetic to Sturgeon. One of the arguments against the hovercrafts is that they are loud and unattractive. But the chief justice pointed to all the other laws that could help the situation, short of giving unlimited jurisdiction to the National Park Service. Here he addresses the lawyer defending the Park Service.

ROBERTS: They agree that the reserved water rights apply. They, what they don’t agree is that that is a lever that gives you authority to do this sort of day-to-day regulation such as, you know, the hovercraft traffic. And while, while you may think a hovercraft is unsightly, I mean, if you’re trying to get from point A to point B, it’s pretty beautiful. [Laughter]

REICHARD: Findley, again for the hovercrafting man, reminded the court the Park Service ban is not about protecting the quality of the river.

FINDLEY: It’s there because of sound, and it’s there because the Park Service wants to restrict access to remote areas of the parks, while the state of Alaska has a very different view about access to the remote areas of the state. And that’s a judgment call that ANILCA should leave to the state of Alaska. Thank you.

ROBERTS: Thank you, counsel. The case is submitted.

However the court rules, this case has wider consequences beyond way up north to Alaska. Once again, unchecked power of government agencies has a way of growing over time. It was curious that neither justices nor lawyers even mentioned the one case that gives so much power to agencies: the Chevron case. Not one peep. Some writers suggest that may be because the more solid conservative majority may finally topple that old ruling, and entrenched powers won’t easily give up their power.

And that’s this week’s Legal Docket.

MUSIC [Boxcar Willie — North to Alaska]: Way up North, way up North. North! To Alaska, we’re goin’ North, the rush is on. North! To Alaska, we’re goin’ North, the rush is on.

(AP Photo/Patrick Semansky, File) In this Sept. 27, 2018, file photo, The Supreme Court building is seen at dawn on Capitol Hill in Washington. 

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