Friday, September 11, 2015

A familiar legal faceplant

Rabett Run remembers David Schnare and the currently-monikered Free Market Environmental Law Clinic. At Legal Planet (good lawblog btw), I read about a 10th Circuit opinion that in no uncertain terms killed off a far-fetched attempt to say Colorado can't require some in-state use of renewable power because it buys power out of state and that would constitute governmental regulation across state boundaries. I went to the read the unanimous court opinion and only then found out who was involved.

Interestingly, the opinion was written by a Bush appointee who is the son of Ann Gorsuch, not someone likely to be a knee-jerk enviro. He was not amused by the arguments, writing the following:
Yes, the district court rejected all three arguments. But for reasons known only to it, [appellant] EELI has appealed just the district court’s disposition under Baldwin. So whether Colorado’s law survives the Pike or Philadelphia tests may be interesting questions, but they are ones that will have to await resolution in some other case some other day.
EELI’s contrary position would also risk serious problems of overinclusion. After all, if any state regulation that “control[s] . . . conduct” out of state is per se unconstitutional, wouldn’t we have to strike down state health and safety regulations that require out-of-state manufacturers to alter their designs or labels? See supra at 9. Certainly EELI offers no limiting principle that might prevent that possibility or others like it. Instead, it seems to embrace such results and, in this way, it seems to call on us not merely to respect the actual holdings of the most dormant authorities in all of dormant commerce clause jurisprudence but to revive and rebuild them on the basis of dicta into a weapon far more powerful than Pike or Philadelphia. That’s an audacious invitation we think the Court unlikely to take up, especially given its remarks about the limits of Baldwin doctrine in Walsh, and it’s a novel lawmaking project we decline to take up on our own.

That second issue in particular is telling. If you're going to try to get courts to extend the law in a new direction, you're more likely to win if you can tell the court that it's just a wee extension, almost perfectly justified by precedent, and clearly limited from making a hash of prior decisions. If instead you have visions of grandeur, you can take a different route, but it didn't work so well here.

I went to the Schnare's web page to look at their litigation victories, and I guess we can say they've been industrious about filing FOIA requests.

One other thing:  this type of litigation based on the dormant commerce clause is making use of classic judicial activism, but apparently that's no big deal.