The Hidden Ideological Stakes of SCOTUS Patent Case

MICHAEL C. DORF

Cornell law professor Michael C. Dorf describes the ostensibly complex legal issues presented in United States v. Arthrex, Inc., in which the U.S. Supreme Court heard argument earlier this week, and explains how those issues reflect an ideological divide as to other, more accessible matters. Professor Dorf argues that although many conservatives would like to dismantle the modern administrative state, our complex modern society all but requires these government agencies, so conservatives instead seek to make them politically accountable through a Senate-confirmed officer answerable to the president, furthering the so-called unitary-executive theory of Article II.

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McNary v. Federal Mine Safety and Health Review Commission

Docket: 20-1049

Opinion Date: March 2, 2021

Judge: Per Curiam

Areas of Law: Civil Procedure

McNary worked as a “gland manager” and miners’ representative at Alcoa’s Point Comfort, Texas Bayer Alumina Plant. On January 8, 2014, while performing his daily safety rounds, McNary observed hot slurry spewing out of a valve, indicating a malfunction. Concerned about miner safety, McNary arranged for the plant’s environmental health and safety manager to be notified. His supervisor, Emig, had also asked for the manager’s assistance. This led to a heated exchange that ended with Emig threatening McNary with removal. Emig claimed that McNary spoke in a way that suggested he intended to challenge Emig’s authority rather than discharge his duties as a miners’ representative. McNary was neither disciplined nor terminated. Two weeks later, McNary filed a complaint against Alcoa with the Mine Safety and Health Administration (MSHA), alleging discrimination under the Federal Mine Safety and Health Act, which declined to pursue charges, McNary filed a complaint, 30 U.S.C. 815(c)(3), seeking a posting at the plant of a notice of violation of the Act and an order requiring management training. Meanwhile, McNary was laid off when Alcoa temporarily stopped production of alumina at Point Comfort; Alcoa subsequently permanently closed the plant. The D.C. Circuit ordered the dismissal of McNary’s suit. McNary fails to show that a court can redress his injury; he does not have Article III standing.

Public Service Electric and Gas Co. v. Federal Energy Regulatory Commission

Docket: 19-1091

Opinion Date: March 2, 2021

Judge: Judith Ann Wilson Rogers

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Utilities Law

In 2016, the Federal Energy Regulatory Commission approved, as just and reasonable, cost allocations filed by PJM, the Mid–Atlantic’s regional transmission organization, for a project to improve the reliability of three New Jersey nuclear power plants. The Commission denied a complaint lodged by Delaware and Maryland alleging a large imbalance between the costs imposed on the Delmarva transmission zone and the benefits that zone would accrue from the project. On rehearing in 2018, the Commission reversed course, concluding that application of PJM’s cost–allocation method to the project violated cost–causation principles and was therefore unjust and unreasonable under the Federal Power Act, 16 U.S.C. 824e. The Commission’s replacement cost–allocation method shifted primary cost responsibility for the project from the Delmarva zone to utilities in New Jersey. The New Jersey Agencies argued that the Commission departed from precedent without adequate explanation, made findings that are unsupported by substantial evidence, and failed to respond meaningfully to objections raised during the proceedings. The D.C. Circuit denied their petitions for review. The Commission reasonably decided to adopt a different cost–allocation method for the type of project at issue here and adequately explained its departure from the cost allocations it had approved in 2016.