Reclaim Democracy!

Key 2024 Supreme Court Cases — environment and democracy: Loper Bright Enterprises v. Raimondo

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Will a majority of Justices overturn a 40-year-old precedent to grab more power for itself and for corporations?

March 2024

On the surface Loper Bright is a dispute about fishing corporations challenging the power of the National Marine Fisheries Service to require them to pay the cost of observers who monitor companies’ compliance with federal fishery rules. But this seemingly narrow legal question actually could yield widely destructive consequences because the justices have opted to re-examine a 40-year-old precedent the court established in Chevron Inc. v. Natural Resources Defense Council. 

That precedent, widely known as the Chevron Doctrine, says state courts should defer to federal agencies’ interpretation of a law when the language is ambiguous or leaves discretion regarding implementation.

Chevron effectively says the civil servants with expertise in their field and who are accountable to an elected president should decide how to implement Congress’ mandates, rather than judges — a principle clearly rejected by the most regressive justices. Reversing this precedent would do enormous harm, stripping many federal agencies charged with protecting civil rights, consumers, and public health and safety; limiting pollution and environmental harm; and much more. 

Stripping the Environmental Protection Agency of its authority to limit carbon emissions is one obvious industry target. 

Dozens of corporate and far-right advocacy groups are pushing the court to overturn Chevron and anoint federal courts as the arbiters of which federal regulations are proper. Such a ruling would invite floods of lawsuits challenging rules that limit or regulate corporate activities. Workplace safety rules, product safety regulations, and limiting emissions to abate the climate crisis are among the obvious targets.

Reversing Chevron also would undermine other core Unitarian Universalist values by enabling state politicians to challenge crucial federal civil rights and voting protections.

Congress is ill-equipped to manage the day-to-day administration of legislation it passes and necessarily must empower federal agencies to turn its broad directives into specific actions based on good-faith interpretations. Those actions remain subject to judicial oversight if any agency truly exceeds its authority. Accordingly, SCOTUS should uphold theChevron precedent and sustain the ability of civil servants to do their jobs effectively.

SCOTUS however, appears likely to at least weaken, if not overturn, the Chevron Principle, based on reports from oral argument.

Origin and Status: The case came on a writ of certiorari to the U.S. Court of Appeals for the District of Columbia Circuit. In October, the court also agreed to hear a second challenge to the Chevron Doctrine, Relentless v. Department of Commerce, which will be argued simultaneously with Loper v. Raimondo. 

Related: Edison Electric Institute v. Federal Energy Regulatory Commission (FERC):  Other corporations also are pushing the Court to overrule Chevron and grant them more power. The Edison Electric Institute and the utility NorthWestern Energy seek to have a lower court ruling in favor of the U.S. Federal Energy Regulatory Commission overturned. They object to approval of a FERC finding that a Montana solar and battery storage facility qualifies for incentives that encourage small renewable energy producers to upload power to the grid. No action has been taken by the Court as of April 2024.

Citizen Lawmaking Is Under Attack as Regressive Lawmakers Work to Suppress Democracy

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Citizen lawmaking via state ballot initiatives is overwhelmingly popular with people across political spectra and has no inherent bias, but in the wake of citizens using initiatives to counter Republican extremism in recent years, GOP legislators have unleashed a wave of bills to obstruct the process. These tactics fall into three categories: keeping initiatives from reaching the ballot, impeding passage, and altering voters’ intent post-passage. 

Every Western state in the Lower 48 except New Mexico enables citizens to make laws directly, a vital check on legislators who refuse to act on pressing issues. As a result, Montanans’ water is protected from cyanide leach mining, thousands of Idahoans can access needed health care via Medicaid expansion, and documented immigrants in Arizona gained in-state tuition rates at public colleges.

The surge in Republican attacks seems driven by alarm over pro-choice voters winning in all six states where abortion ballot questions appeared following the U.S. Supreme Court’s regressive majority overturning Roe v Wade in 2022, including GOP strongholds like Montana, Kansas, and Kentucky. In November of 2024, Arizona and Florida voters will likely vote on whether to overturn abortion bans imposed by legislators despite overwhelming support for bodily autonomy among residents (e.g. sixty-four percent of Floridians say abortion procedure should be legal in most or all cases). Up to nine states may have abortion on the ballot this fall.

But direct democracy has no partisan bias. Empowering voters sometimes favors conservative causes. In Colorado, for example, 65 percent of voters approved a 2022 initiative cutting state income taxes and passed another measure saying only U.S. citizens may vote in the state.

Looking beyond policy outcomes, suppressing ballot initiatives invites turmoil. The process serves as a safety valve, giving citizens a constructive option when legislatures defy constituents. This is especially valuable when ousting incumbents in “safe seats” is nearly impossible due to gerrymandered districts. 

Much of the current GOP policy agenda is deeply unpopular, even among their voters, but rather than listening to constituents or moderating policies, stifling constituents has become the norm (in more ways than one). Montana Senate Bill 93, passed last year, would have forced citizen groups to pay a $3,700 filing fee just to start a petition drive (a Montana court struck down that portion of the law in early 2024) while giving state officials the power to reject a proposed initiative if they deemed it similar to any that failed within the previous four years. 

After defeating an initiative to cap homeowner taxes in the previous election, powerful corporate lobbying groups like the Montana Chamber of Commerce and Association of Realtors backed the proposed barriers to direct democracy. Democratic State Representative Kelly Kortum calls the bill, “An attempt to strip Montanans of the ability to make laws themselves.”

In Idaho, the GOP introduced a resolution to amend the state constitution to accomplish voter suppression the state supreme court struck down just two years ago. It would require initiative backers to gather in-person signatures from six percent of voters in all of Idaho’s 35 districts–doubling the current 18-district requirement and requiring the assignment of signature gatherers to small towns nine hours from the state capital of Boise. Luke Mayville of Reclaim Idaho, the grassroots organization behind the 2018 initiative that expanded Medicaid coverage, says such restrictions “would render citizen initiatives impossible.”

While that bill appears dead for the current legislative session, several other states are pushing related tactics that impede signature-gathering and give outsized power to rural areas.

Even without an impossibly short window, extreme signature-dispersal schemes proposed in Idaho and other states would grant corporations the power to prevent voters from ever seeing a measure disfavored by big business. That threat exists thanks to the U.S. Supreme Court creating a First Amendment “right” for corporations to spend unlimited sums influencing ballot questions, in 1978 (First National Bank of Boston v Bellotti).

In Nevada, NV Energy spent $63 million to thwart an initiative that aimed to end its electric monopoly. With extreme signature-gathering requirements, corporations could prevent the public debate ballot questions provoke by coopting or propagandizing voters in a single district (to deter residents from endorsing an initiative). This would be easily accomplished in rural districts where gaining endorsements from six percent of voters already is burdensome. 

Direct democracy in the West arose largely through citizens fighting the corruption of state legislatures by mining, railroad, and timber interests — especially in Montana). South Dakota led the way in 1898, followed rapidly by Oregon, Montana, and now 24 total states. So laws that would enable corporations to stifle citizen initiatives before they reach the ballot completely betray that original intent.

The merit of citizen lawmaking is one point of broad agreement among citizens of differing party loyalties and ideologies. This vital tool is under increasing attack, and it’s up to all of us to defend our right to self-governance from politicians who seek to elevate their power at the expense of their constituents.

Jeff Milchen is a board member of Reclaim Democracy!

Editor’s note: we’ve been warning of the escalating attacks on citizen lawmaking for years and are pleased to see have been opened as the sabotage attempts became more glaring in 2023. Our previous reporting has appeared in Jacobin and Governing, among others.

Reclaim Democracy! Commends the Introduction of Federal Voter Protection Bills

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September 2023

The Freedom to Vote Act (FTVA) and the John Lewis Voting Rights Advancement Act (VRAA) are imperative bills to pass through Congress in light of ongoing attempts to pass restrictive, anti-voter bills. At least 14 state legislatures enacted 17 restrictive laws during the first nine months of 2023 erecting barriers for eligible voters and disproportionately impacting voters of color, youth, and those with limited mobility. State legislatures continue impeding our ability to vote and have our votes count equally through gerrymandering, voter roll purges, and more than 50 other tactics Reclaim Democracy! has identified across the states. We call on Congress and President Biden to do everything in their power to ensure passage of both the FTVA and VRAA.

Along with protecting citizens from being denied their vote, the FTVA includes key actions to shrink the influence of big money in politics, guarantees congressional districts provide fair representation for all, and creates national standards to ensure the integrity and security of federal elections.

See summaries from the Brennan Center for Justice for detailed information on both the FTVA and VRAA.

Reclaim Democracy! is among more than 250 allied pro-democracy organizations united via Declaration for American Democracy to advance such voter protection measures.

Finally, we must recognize a hard truth: when our ability to vote depends on politicians who control the levers of power in our state, voting is merely a vulnerable privilege and not a right. Ultimately, we must amend our Constitution to embed an affirmative right to vote and ensure our votes count equally. 

NorthWestern Energy Must Be Made Accountable to Ratepayers

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By Larry Bean

Imagine a world where the law forces customers to buy from a single corporation. Imagine that same law guarantees profits for using expensive, outdated, and risky business practices. Worse yet, imagine this corporation chooses to emit dangerous toxic pollutants while hiding from public scrutiny. You need not imagine this scenario. It’s how NorthWestern Energy conducts business in Montana, and we customers deserve better.

The monopoly corporation is building an expensive, polluting methane-fired power plant along the Yellowstone River in Laurel and has managed to evade any meaningful public input thus far.  That is until April6, when District Judge Michael Moses ordered the construction of the plant be halted. Why? The health and environmental impacts that will surely come if this facility is allowed to operate were not properly considered. The Montana Department of Environmental Quality issued a permit based only on the inadequate data provided by NorthWestern.  

Laurel residents (and Billings residents downwind) will experience carcinogenic air pollution. State agencies tasked to protect our health and air quality have documented that the plant will emit toxic Hazardous Air Pollutants (HAPs) including formaldehyde, propylene, and benzene. 

Folks living within a few miles of the plant will contend with loud engine noise and overbearing industrial lighting all hours of the day and night, with this massive plant dominating what used to be an agricultural area. In fact, the plant’s site is still zoned for agricultural use, but that hasn’t stopped NorthWestern from continuing industrial construction without proper zoning permits.

Not only does the corporation want to keep us in the dark about the environmental impact its plant will have on the Yellowstone Valley, NorthWestern does not want us to know the full amount it will take out of the ratepayers’ pockets. 

NorthWestern already raised our rates last year, and it’s trying to get even more increases approved right now.  Bad business decisions like this expensive plant are part of the reasoning for rate increases.

Thus far, NorthWestern has barreled forward without meaningful public hearings or comment periods. What is the corporation hiding? And why is it building such an expensive, polluting plant when other responsible energy companies in our region are investing in reliable energy sources that are cleaner, safer, and more affordable? It’s because of a rigged system that the monopoly corporation is abusing. 

The technical term is “Return on Equity” or ROE. The state guarantees NorthWestern an 11 percent profit for building, operating, and maintaining power plants, creating incentives contrary to the interest of its captive customers.

Just think, the cost of the plant (estimated at a third of a billion dollars), maintenance and operation of very complicated internal combustion engines, and an increasingly expensive fuel for which this plant will compete and help to make prices even higher, all paid for by you and me, plus a guaranteed 11 percent profit.  

NorthWestern has brazenly abused its monopoly position, and this expensive methane-fired plant that will pollute the entire Yellowstone River valley is just the latest chapter. 

Because NorthWestern hasn’t given the community or any of its customers an opportunity to provide input, it’s important for us to be proactive in letting the utility hear directly from us. You can add your name to this letter to NorthWestern Energy executives and its board of directors, demanding the corporation give residents and customers a say in decisions about this plant.

Larry Bean is a Billings-based photographer, retired landscape architect, and a member of
Northern Plains Resource Council, a conservation and family agriculture organization.

Follow-up: USPS Changes Course, Plans Major Investment in Electric Delivery Vehicles

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In January, we blasted the plan by U.S. Postmaster Louis DeJoy to purchase tens of thousands of gas-guzzling delivery trucks for roles perfectly suited to electric vehicles and urged people to speak out in opposition to the disastrous deal, according to a the A-1 Auto Transport cost estimator website in a blog post. Now, we’re excited to learn the USPS changed course and announced plans to purchase at least 66,000 electric delivery vehicles–more than half the 106,000 delivery vehicles it plans to acquire over the next five years.

The USPS said about one-third of the investment for fleet electrification comes from the Inflation Reduction Act. The plan calls for purchasing 60,000 trucks from the military contractor Oshkosh Corporation, of which 45,000 will be electric. USPS will buy 46,000 new vehicles from mainstream manufacturers, of which 21,000 will be electric.

Along with grassroots opposition, sixteen states filed suit in April to halt the purchase of gas-powered trucks, joining many environmental groups calling for investing in electric vehicles instead.

We thank all the people and organizations who rallied opposition to the earlier plan to entrench an environmentally destructive delivery fleet for a generation. It’s a victory worth celebrating as we close the year.

See the original post from January here.

Jail Is a Death Sentence for a Growing Number of Americans

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By Shaila Dewan
First published November 22, 2022 in the NY Times

Matthew Shelton was contending with diabetes and periodic substance abuse when he moved in with his sister outside Houston in order to get his life together.

Three months later, facing an old criminal charge of driving while intoxicated, he turned himself in to the Harris County Jail one day in March with a supply of the insulin he relied on to stay alive.

After two days, he told his family that no one was allowing him access to the insulin: He was trying to manage his illness by discarding the bread from the sandwiches he was served. He was alone, frightened and cold, he said.

His mother, frantic, tried repeatedly to phone the jail but could not reach anyone. “We sent money for him to buy socks and ChapStick, and he never bought them,” she said.

Three days later, Mr. Shelton, 28, was found dead in his cell, after having slipped into a diabetic coma.

He was one of 24 people who have died this year in the jail, located in Houston, a far higher death rate than what is reflected in the most recent statistics for jails around the country.

Houston, whose jail has reached its highest population count in over a decade, is far from the only city where jails have become more fatal. Deaths have spiked in cities across the country, including New York, Oklahoma City, Seattle, Pittsburgh and Louisville, Ky. California, Texas and Georgia have also recorded statewide increases in deaths. Covid-19 accounts for only part of the rising toll — suicides and fatal overdoses have also increased in some places.

Jail officials blame a host of factors, including crowding, staff shortages, mental health issues exacerbated by the pandemic and the repurposing of beds in solitary confinement, once available to isolate violent detainees, that now must be used for quarantining the ill.

But jails have also in many cases violated minimum safety standards or failed to provide adequate medical and mental health care for their inmates, about two-thirds of whom are awaiting trial and presumed innocent.

The Houston facility was cited by the state in September for holding new arrestees in its crowded Joint Processing Center for as long as 99 hours before moving them to a permanent cell. The limit is 48 hours.

In Los Angeles, a federal judge granted an emergency order in September after the American Civil Liberties Union provided evidence that people with mental illness were being chained to furniture for days or left to sleep on concrete floors without access to toilets.

In Louisville, a woman killed herself in jail after being held for 18 hours in an attorney interview booth with no mattress, toilet or running water.

Much of the recent attention on jails has been focused on Rikers Island in New York, which is under threat of a federal takeover after suicides and frequent reports of uncontrolled violence.

But there are indications of a much wider crisis whose dimensions are not yet fully understood. The Justice Department has failed to fulfill a 2013 congressional mandate to conduct a comprehensive count of all deaths in custody, at one point acknowledging that its new system had recorded only 39 percent of deaths in local jails.

The most recent national figures available, from 2019, show that jail deaths were rising even before the pandemic. From 2000 to 2019, jail deaths per capita increased by 11 percent, to 167 per 100,000. In 2019, suicide was the leading cause of death. The number of drug- and alcohol-related deaths was the highest ever recorded.

The nation’s jails have little broad oversight but instead are local facilities, most commonly controlled by elected sheriffs. They held about 650,000 people last year, according to Jacob Kang-Brown of the Vera Institute for Justice, a group promoting prison reform. The jail population declined substantially at the beginning of the Covid-19 pandemic but has since begun to rebound, he said.

In Houston, there was another death Tuesday morning, when a 45-year-old man succumbed to injuries sustained in an assault by other jail inmates. That followed the death of a 27-year-old man who was found hanging in his cell last week. Two of the other deaths this year were suicides, including a man who was moved to a padded cell after a suicide attempt, then rammed his head repeatedly against the walls, the door and a metal grate, causing fatal injuries.

Jason Spencer, the chief of staff for Sheriff Ed Gonzalez, whose department runs the jail, said that the death rate, currently at more than 200 per 100,000 inmates, can vary widely from year to year.

At least a dozen of those who died this year were in their 20s, 30s or 40s. More than half had a history of mental illness or had been declared incompetent, according to Sarah V. Wood, the general counsel for the public defender’s office.

While an autopsy attributed Mr. Shelton’s death to a natural cause, diabetic ketoacidosis, his family insists that it was entirely preventable, a result of the jail’s failure to provide him with insulin.

“This is something that didn’t need to happen,” his mother, Marianna Thomson, said. “This is just carelessness. They didn’t care.”Marianna Thomson holding a locket containing the ashes of her late son, Matthew Shelton.Credit…Brandon Thibodeaux for The New York Times

Mr. Spencer said the death occurred not long after the county’s public health care provider, Harris Health, took over the responsibility of providing medical care at the jail and referred questions there.

Bryan McLeod, a spokesman for Harris Health, declined to comment because Mr. Shelton’s family plans to sue. He also declined to discuss whether the jail’s medical providers were adequately staffed.

The deaths this year in Houston come amid a host of complaints about dangerous conditions in the jail. In a lawsuit, several dozen detention officers describe staffing shortages so severe that drug use and assaults were rampant, nurses were unable to administer medicine and officers, often denied meals and bathroom breaks, sometimes urinated into plastic bags.

“The jail is in disastrous shape right now,” said David Batton, the legal counsel for the union that represents jail employees. He faulted the county for failing to adequately fund jail operations. The lawsuit was dismissed last week.

Mr. Spencer said the county had approved a staffing increase of 100 detention officers, but that more than 100 positions remained unfilled. He said the problem was much larger than Houston; the jail’s death rate, he said, was in line with that of the state’s other large jails.

Many jails have seen overcrowding in part because of court backlogs stemming from the pandemic, which slowed or halted hearings and trials. But Houston’s backlog dates back to Hurricane Harvey in 2017, when the courthouse was damaged. The local courts now have more than 41,000 pending felony cases.

Even if no new cases came in, it would take more than a year to clear the old ones, according to a 2020 analysis by the Justice Management Institute, a research and training group. The institute recommended dismissing all nonviolent felony cases more than nine months old, pointing out that most of the accused would not have been sentenced to time behind bars.

But Kim Ogg, the Harris County district attorney, has declined to dismiss cases in bulk, saying that each should be considered individually. “We can’t neglect our prosecutorial duty, and we’re not going to tell victims that their crime doesn’t count,” said Dane Schiller, a spokesman for Ms. Ogg.

Advocates for better jail conditions also blame the overcrowding on a pandemic-era executive order from Gov. Greg Abbott, which later became state law, aimed at blocking the release of detainees on cashless bail.

The law, S.B. 6, prevents the release of any inmate with a previous conviction for violence or threatening violence, no matter how old, without requiring them to pay some bail money.

It has worked against a parallel effort to funnel people with serious mental illness into treatment instead of jail, without requiring them to pay for release, said Krish Gundu, co-founder and executive director of the Texas Jail Project, a watchdog group. She said that S.B. 6 undermines the Sandra Bland Act, named for a woman who could not afford the $500 needed to post bond after a traffic stop and hanged herself in a Texas jail.Twenty inmates have died this year in Harris County Jail in Houston.Credit…Brandon Thibodeaux for The New York Times

Because many acts associated with mental illness, such as spitting on a police officer, are categorized as violent, hundreds of poor defendants who need treatment must now remain in jail while they are on the long waiting list for a community psychiatric bed, Ms. Gundu said.

In Harris County, four out of five detainees have a mental health indicator such as a diagnosis of major mental illness or previous treatment with psychiatric drugs, according to the jail’s dashboard, putting an intense strain on the system.

One woman who had no prior convictions was arrested in January 2020 on charges of possessing less than a gram of meth, almost certainly not enough to earn a prison sentence.

The woman was repeatedly referred to the jail’s mental health unit when guards witnessed her doing things like walking naked, drinking out of toilets and assaulting or being assaulted by others. But each time, she was swiftly returned to the general population. She spent more than two years moving in and out of jail, diversion programs and mental health treatment.

At some point, jail officials became aware that she was pregnant. In May, she gave birth in her cell without medical assistance. How that happened is unclear: Mr. Spencer said she had been checked on once every hour, as required.

When the newborn was discovered, baby and mother were taken to the hospital, where the mother remained under the supervision of two jail guards. A judge at that time declared her incompetent to stand trial and “suffering severe and abnormal mental health, emotional or physical distress.”

Despite her condition, she was permitted at the hospital to interact with her infant daughter and is now charged with stomping, kicking and striking her, though the baby survived.

Advocates for better jail conditions said the jail had failed to treat her severe mental illness, failed to adequately monitor her pregnancy and failed to protect the baby.

The woman’s lawyer, Staci Biggar, did not respond to requests for comment.

This year’s death toll comes on the heels of several notorious cases last year. In one, Jaquaree Simmons, 23, was beaten to death by guards who then failed to document their use of force, according to a subsequent investigation. The jail fired 10 guards, and the case will soon be presented to a grand jury.Fred Harris after his high school graduation in Stafford, Texas, in 2020.Credit…Mr. Harris in the hospital after being beaten and stabbed in Harris County Jail, which ultimately led to his death in 2021.Credit…

In another, Fred Harris, a 19-year-old, cognitively disabled inmate who weighed only 98 pounds, was placed in a holding tank with a 240-pound detainee who was known to be violent and was required to have an escort when outside his cell, according to a lawsuit filed by Mr. Harris’s family. Mr. Harris was stabbed and beaten to death, and his cellmate has been charged with murder.

Asked if the jail bore any responsibility, Mr. Spencer said, “That’s hard to say. I mean, those kinds of things, you know, sadly, have always happened in jails and prisons.”

But Mr. Harris’s mother, Dallas Garcia, said jail officials had failed to provide basic protections for her son. “I don’t want anyone else to experience that,” she said. “I don’t want there to be a lack of human decency in these places.”

 ⓒ 2022 New York Times

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