Two new CVSGs – on a deadline

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their docket for the term, but they did ask the U.S. solicitor general to weigh in on a pair of cases involving the Clean Water Act – and in doing so took the unusual step of imposing a deadline on the federal government.

The calls for the views of the federal government came in County of Maui v. Hawaii Wildlife Fund and Kinder Morgan Energy v. Upstate Forever. The Maui case centers on wells at a county-owned wastewater reclamation plant that discharges treated wastewater underground to dispose of it; the pollutants in the wastewater enter the groundwater, which eventually reaches the ocean. The U.S. Court of Appeals for the 9th Circuit ruled that such pollutants qualify as “point source” pollution, for which a Clean Water Act permit is required. The county has asked the justices to weigh in, complaining that the lower court’s decision could impose burdens on “millions of other sources, including the roughly” 6,000 similar wells and 21,000 septic systems in Hawaii.

The Kinder Morgan case arose after a crack in the company’s pipeline leaked nearly 400,000 gallons of gasoline and diesel into the surrounding soil and groundwater. Kinder Morgan fixed the leak and worked to clean up the damage, but the U.S. Court of Appeals for the 4th Circuit ruled that the Clean Water Act applied to the leak because there was a “direct hydrological connection” between the leak of the pollutants into the groundwater and navigable waters covered by the CWA.

Today the justices asked the federal government to file a brief expressing the views of the United States on the issues presented by the two cases – a fairly common move, especially in cases, like this one, that involve the interpretation of an important federal statute. What was less common, however, was the justices’ order that the solicitor general’s brief be filed by the afternoon of January 4, 2019: Normally, there is no deadline for the federal government to respond to this kind of request from the court, known as a CVSG. Although there is no way to know for sure, the deadline was likely intended to ensure that the justices could, if they decide to grant review, hear oral arguments and decide the cases by the end of the current term.

Last term, in Janus v. American Federation of State, County, and Municipal Employees, the justices held that government employees who are not members of the union that represents them cannot be required to pay a fee to cover the costs of collective bargaining. That decision overruled a case dating back to 1977. Today the justices sent a case challenging the requirement that lawyers who wish to practice in a particular state become members of (and pay dues to) that state’s bar association back to the lower court for reconsideration in light of their decision in Janus.

The case was filed by Arnold Fleck, a lawyer in North Dakota who belongs to the state’s bar association and objected to the bar association’s support for a parental-rights law that appeared on the ballot in November 2014. As Fleck’s case came to the Supreme Court, he had two arguments. First, he contended that the bar association’s requirement that he “opt out” of paying the portion of his dues that finances the association’s political speech violates the Constitution. Instead, Fleck argued, he should only have to pay those dues if he affirmatively “opts in.”

The second question presented by Fleck’s case was a broader one – the idea that mandatory bar dues themselves are unconstitutional. Fleck urged the court to overrule its decisions (dating back to 1961 and 1990) holding that a state can require its attorneys to join a state bar association and pay bar dues. Those decisions, Fleck contended, rested on the need to regulate the legal profession and improve legal services in the state. But that can easily be accomplished, Fleck continued, without making bar membership mandatory.

Finally, the justices denied review in Animal Legal Defense Fund v. Department of Homeland Security, a challenge to decisions by the Secretary of Homeland Security waiving environmental and animal protection laws (among others) in connection with the construction of a wall along the U.S.-Mexico border. As the case came to the Supreme Court, the ALDF had asked the justices to weigh in on the constitutionality of a federal immigration law that gives the secretary power to waive those requirements when they would hinder “expeditious construction” of barriers.

The justices will meet again for another conference – the last regularly scheduled one of 2018 – on Friday, December 7.

This post was originally published at Howe on the Court.