Why the Supreme Court was Right Last Week to Deny Review of the Pennsylvania Supreme Court Decisions Handed Down Prior to the 2020 Election

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that the U.S. Supreme Court correctly denied review last week of the Pennsylvania Supreme Court decisions handed down before the 2020 election. Dean Amar and Professor Mazzone explain why the majority denied review and point out that the dissenting opinions unwittingly demonstrate the rightness of the majority.

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New Jersey v. Environmental Protection Agency

Docket: 08-1065

Opinion Date: March 5, 2021

Judge: Judith Ann Wilson Rogers

Areas of Law: Environmental Law, Government & Administrative Law

The DC Circuit denied the State of New Jersey's petition for review of an EPA rule promulgated in response to New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). In New York, environmental organizations and industrial entities challenged the revision of the Clean Air Act's new source review (NSR) program for preconstruction permitting of stationary sources of air pollution. As a threshold matter, the court concluded that challenges to the State's Article III standing lack merit. In this case, petitioner has identified two injuries, either of which suffices to establish standing to challenge the rule. On the merits, the court concluded that the record confirms that EPA engaged in reasoned decisionmaking. The court explained that EPA's obligation was to analyze the trade-off between compliance improvement and the burdens of data collection and reporting and articulate a reasoned judgment as to why any proposed additional burden would not be justifiable in terms of the likely enhancement of compliance. By adequately considering NSR enforcement concerns raised during this rulemaking and offering a reasoned explanation for its 50 percent trigger, the court concluded that EPA satisfied this obligation. On this record, petitioner otherwise fails to show that EPA's action was arbitrary or capricious.

United Food and Commercial Workers Union v. National Labor Relations Board

Docket: 20-1027

Opinion Date: March 5, 2021

Judge: Arthur Raymond Randolph

Areas of Law: Labor & Employment Law

The DC Circuit dismissed the union's petition for review of the Board's decision dismissing an unfair labor practice complaint against Kroger Limited Partnership I. The union charged Kroger with violating section 8(a)(1) of the National Labor Relations Act by "selectively and disparately" enforcing the no-solicitation policy set forth in the lease and in the landlord's letter. The court concluded that 29 U.S.C. 160(e) bars the court from reviewing the union's objection. In this case, the court's jurisdiction is limited in the following respect: "No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." The court explained that the critical inquiry is whether the objections made before the Board were adequate to put the Board on notice that the issue might be pursued on appeal. The court concluded that a dissenting member's discussion of an issue is not enough. In this case, even after the Board's decision and the member's discussion of a different theory, the union did not seek reconsideration. Rather, it raised the Board's dissenter theory for the first time in this court. The court concluded that this was not enough. Finally, the court concluded that the union forfeited its claim of extraordinary circumstances.