Tuesday, September 18, 2012

Christopher Van Hollen, Jr. v. FEC

Sep 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5117. Appealed from the United States District Court for the District of Columbia. Appellee, Representative Christopher Van Hollen, Jr., brought a lawsuit challenging 11 C.F.R. § 104.20(c)(9), a regulation promulgated by the Federal Election Commission ("FEC"), that purports to implement § 201(f)(2)(F) of the Bipartisan Campaign Reform Act (BCRA), to require disclosure of "disbursement for the direct costs of producing and airing electioneering communications."
    The District Court granted summary judgment in favor of Appellee, because, in its view, in enacting 2 U.S.C. § 434(f)(2)(F), "Congress spoke plainly [and] did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking." Van Hollen, 851 F. Supp. 2d at 89. The Appeals Court said, "We disagree and reverse."
    The Appeals Court said, "After reviewing the record with care, we conclude that the District Court erred in holding that Congress spoke plainly when it enacted 2 U.S.C. § 434(f), thus foreclosing any regulatory construction of the statute by the FEC. The statute is anything but clear, especially when viewed in the light of the Supreme Court's decisions in Citizens United v. FEC, 558 U.S. 310 (2010), and FEC v. Wis. Right to Life, Inc. (WRTL II), 551 U.S. 449 (2007). Furthermore, we do not agree with the District Court that the words 'contributors' and 'contributed' in 2 U.S.C § 434(f)(2)(F) cannot be construed to include a 'purpose' requirement, especially when it is clear that subsection (F) only applies to 'disbursement[s] for the direct costs of producing and airing electioneering communications.'"
    Common Cause President Bob Edgar issued a statement on the decision saying, "American voters are the big losers in today's federal appeals court decision permitting 'independent' groups to withhold the identities of the multi-millionaires and corporations investing in the 2012 elections. This decision dooms voters' last chang[c]e of finding out who is intent on pumping millions of dollars into the elections. With 49 days to go, there's still no sheriff in town, it's the wild, wild west. People and companies making six- and seven-figure investments in candidates and causes will want something in return for their money, and the candidates who benefit from their generosity will have a powerful incentive to deliver it. That's why disclosure is so important; before we go to the polls, voters should know to whom the candidates we choose will be beholden."
    Access the complete 5-page ruling (click here). [#All] [Editor's Note: This is obviously not an environmental case; it may impact environmental policy making.]
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U.S. v. Maury

Sep 17: In the U.S. Court of Appeals, Third Circuit, Case Nos. 09-2305/09-2306/09-2345/09-2346/09-2356. On Appeal from the United States District Court for the District of New Jersey. Following an eight-month criminal trial, a jury convicted Atlantic States Cast Iron Pipe Company and four of its managers of various crimes. These included conspiring to commit a host of environmental pollution and worker safety violations, attempting to cover up or impede Federal investigation of those violations, and substantive violations of the Clean Water Act and the Clean Air Act. Specifically, the Defendants were found to have illegally pumped contaminated water into storm drains and, as a result, into the Delaware River; to have unlawfully burned 50-gallon drums of paint waste in a cupola and emitted the fumes from those activities into the air; and to have attempted to cover up several work-related accidents at its facility, one of which resulted in the death of an employee. The jury also found that the Defendants engaged in a conspiracy to commit these acts -- and to impede the resulting Federal investigation -- in order to maximize productivity and profits at the Plant.

    The Defendants appealed from the jury's verdict, raising a litany of issues relating to pre-trial discovery, the District Court's handling of the trial itself, the propriety of certain jury instructions, and the District Court's sentencing determinations. The Appeals Court said, ". . .in light of the District Court's fine handling of these extraordinarily complicated proceedings, we will affirm the final judgments of conviction and sentence in this case."

    Without getting into all of the details in this lengthy 83-page decision, following the jury verdicts, the Defendants filed an omnibus post-trial brief that raised a multitude of challenges to the jury's verdicts and to the District Court's handling of the case. In August 2007, the District Court ruled on the Defendants' post-trial motions, rejecting the majority of those challenges, but granting Rule 29 judgments of acquittal for insufficient evidence on the following: (1) one false statement charge against Faubert and the Company, for the jury's failure to reach a verdict (Count 2); (2) one CWA charge against Davidson and the Company, concerning an alleged unlawful discharge of wastewater in September 1999 (Count 21); and (3) one CWA charge against Maury and the Company concerning an alleged unlawful discharge of wastewater in October 1999. The Court denied the Rule 29 motions as to all other counts of conviction.

    The District Court held sentencing hearings in April 2009. It sentenced Prisque to 70 months' imprisonment, Faubert to 41 months' imprisonment, Maury to 30 months' imprisonment, and Davidson to 6 months' imprisonment. As for the Company, the Court opted to apply the Alternative Fines Act (the AFA), 18 U.S.C. § 3571(c)(1), rather than the CWA and CAA, in imposing criminal penalties. Applying the AFA, the Court fined the Company the maximum penalty of $500,000 per violation on Count 1 (conspiracy), Counts 8-11 (obstruction), Counts 12-16 (CWA -- cement pit discharge), Counts 28-32 (CWA -- Number Four Pit discharge), and Count 34 (CAA) for a total fine of $8 million dollars. It also sentenced the Company to 4 years' probation, with a court-ordered monitor to ensure regulatory compliance going forward.

    The Defendants appealed the District Court's ruling in May 2009. The Appeals Court following a lengthy analysis said, "Having carefully considered the Defendants' various remaining arguments, we find them to be without merit. We therefore affirm the final convictions, judgments and sentences of the District Court, in all respects."
    Access the complete opinion (click here). [#Air, #Water, #Haz, #Toxics, #CA3]
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