SUPREME COURT NOTEBOOK

Justices rule against EPA power plant mercury limits

By Sam Hananel
Associated Press

WASHINGTON (AP) - The Supreme Court ruled Monday against the Obama administration's attempt to limit power plant emissions of mercury and other hazardous air pollutants, but it may only be a temporary setback for regulators.

The justices split 5-4 along ideological lines to rule that the Environmental Protection Agency did not properly take costs into account when it first decided to regulate the toxic emissions from coal- and oil-fired plants.

The EPA did factor in costs at a later stage, when it wrote standards that are expected to reduce the toxic emissions by 90 percent. But the court said that was too late.

The rules, which took effect in April, will remain in place while the case goes back to a lower court for the EPA to decide how to account for costs, environmental advocates say.

They were supposed to be fully in place next year. At issue was whether health risks are the only consideration under the Clean Air Act.

The challenge was brought by industry groups and 21 Republican-led states, which argued that the regulations were too costly for coal miners, businesses and consumers.

Writing for the court, Justice Antonin Scalia said the EPA was unreasonable in refusing to consider costs at the outset.

"The agency must consider cost - including, most importantly, cost of compliance - before deciding whether regulation is appropriate and necessary," Scalia said.

In dissent, Justice Elena Kagan said it was enough for EPA to consider costs later in the process.

"Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants," Kagan said. She was joined by the court's liberal members.

The EPA said it is reviewing the court's decision and will determine any appropriate next steps once a review is completed.

"EPA is disappointed that the Supreme Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance," EPA spokeswoman Melissa Harrison said.

Indeed, more than 70 percent of power plants already have installed controls to comply with the rules, said Vicki Patton, an attorney at the advocacy group Environmental Defense Fund.

"EPA already has an economic analysis that it can rely on to demonstrate that the public health benefits of the standards far outweigh the costs," Patton said.

The case is the latest in a string of attacks against the administration's actions to use the Clean Air Act to rein in pollution from coal-burning power plants.

Senate Majority Leader Mitch McConnell, R-Ky., called the ruling "a cutting rebuke to the administration's callous attitude." He said it "serves as a critical reminder" to state governors, who are awaiting more EPA rules this summer aimed at curbing pollution from coal-fired power plants that is linked to global warming.

States have already challenged those rules even before they are final, and Congress is working on a bill that would allow states to opt out of any rules clamping down on heat-trapping carbon dioxide.

White House spokesman Josh Earnest called out McConnell for reprising his suggestion that governors should flout EPA regulations. He said McConnell was not advocating in the best interests of the American public.

House Speaker John Boehner, R-Ohio, suggested that the high court ruling gives opponents an opening "to protect the jobs and energy that are still at risk under this administration."

In the case of the mercury rules, the costs of installing and operating equipment to remove the pollutants before they are dispersed into the air are hefty - $9.6 billion a year, the EPA found.

But the benefits are much greater, $37 billion to $90 billion annually, the agency said. The savings stem from the prevention of up to 11,000 deaths, 4,700 nonfatal heart attacks and 540,000 lost days of work, the EPA said. Mercury accumulates in fish and is especially dangerous to pregnant or breastfeeding women, and young children, because of concern that too much could harm a developing brain.

A disproportionate share of the 600 affected power plants, most of which burn coal, are in the South and upper Midwest.

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Associated Press writers Matthew Daly and Josh Lederman contributed to this report.

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Court upholds use of controversial execution drug

By Mark Sherman
Associated Press

WASHINGTON (AP) - A deeply divided Supreme Court upheld the use of a controversial drug in lethal-injection executions Monday, even as two dissenting justices said for the first time they think it's "highly likely" the death penalty itself is unconstitutional.

On their last day together until the fall, the justices voted 5-4 in a case from Oklahoma that the sedative midazolam can be used in executions without violating the U.S. Constitution's Eighth Amendment which prohibits cruel and unusual punishment.

The court also divided 5-4 in a case upholding independent commissions that draw congressional districts in Arizona, California and 11 other states in a bid to reduce partisanship in electoral mapmaking. By a similar margin, the court called into question first-ever limits on emissions of mercury and other toxic pollutants from power plants, in a ruling that said the federal Environmental Protection Agency failed to account for the cost of the regulations at the outset.

In the dispute over the lethal-injection drug, midazolam was used in Arizona, Ohio and Oklahoma executions in 2014. The executions took longer than usual and raised concerns that the drug did not perform its intended task of putting inmates into a coma-like sleep.

Justice Samuel Alito said for a conservative majority that arguments the drug could not be used effectively as a sedative in executions were speculative and he dismissed problems in executions in Arizona and Oklahoma as "having little probative value for present purposes."

In a biting dissent, Justice Sonia Sotomayor said, "Under the court's new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake."

Alito responded, saying "the dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments."

In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer's opinion. They stopped short of declaring their outright opposition to capital punishment.

"I believe it highly likely that the death penalty violates the Eighth Amendment," Breyer said, drawing on cases he has reviewed in more than 20 years on the Supreme Court bench.

More than 100 death row-inmates have been exonerated, showing that the death penalty is unreliable, Breyer said. He said it also is imposed arbitrarily, takes far too long to carry out and has been abandoned by most of the country. Last year, just seven states carried out executions, he said.

In 1972, the Supreme Court struck down every state's death penalty laws. Some justices believed at the time that this decision effectively would end capital punishment.

Instead, many states wrote new laws, and four years later the court reinstated the death penalty.

In an extremely unusual turn Monday, four justices read their opinions from the bench in the lethal execution case.

Justice Antonin Scalia, part of the court's majority, complained that the liberal justices were willing to discard long-settled principles in a term in which the left side of the court won most of the closely contested cases, though not the lethal injection dispute.

The Supreme Court's involvement in the case began in January with an unusually public disagreement among the justices over executions. As the case involving the pending executions of three Oklahoma death-row inmates was being heard, Justice Samuel Alito said death penalty opponents are waging a "guerrilla war" against executions by working to limit the supply of more effective drugs. On the other side, liberal Justice Elena Kagan contended that the way states carry out most executions amounts to having prisoners "burned alive from the inside."

In 2008, the court upheld Kentucky's use of a three-drug execution method that employed a barbiturate as the first drug, intended to render an inmate unconscious. But because of problems obtaining drugs, no state uses the precise combination at issue in that case.

Last April's execution of Clayton Lockett was the first time Oklahoma used midazolam. Lockett writhed on a gurney, moaned and clenched his teeth for several minutes before prison officials tried to halt the process. Lockett died after 43 minutes.

Executions in Arizona and Ohio that used midazolam also went on longer than expected as inmates gasped and made other noises before dying.

Meanwhile, the court challenge has prompted Oklahoma to approve nitrogen gas as an alternative death penalty method if lethal injections aren't possible, either because of a court ruling or a drug shortage.

In response to Monday's decision, Oklahoma Gov. Mary Fallin said she expects state courts to set new execution dates for the three inmates involved in the case. Oklahoma Department of Corrections spokeswoman Terri Watkins said the state has the necessary drugs for carrying out the executions.

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Associated Press writers Jessica Gresko and Sam Hananel in Washington and Sean Murphy in Oklahoma City contributed.

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Texas abortion clinics can remain open, court rules

By Mark Sherman
Associated Press

WASHINGTON (AP) - The U.S. Supreme Court acted Monday to keep Texas' 19 abortion clinics open, a move that could open the way for the court's most important ruling on abortion in a generation.

The justices voted 5-4 to grant an emergency appeal from the clinics after a federal appeals court upheld new clinic regulations and refused to keep them on hold while the clinics appealed to the Supreme Court. The court's decision to block the regulations is a strong indication that the justices will hear the full appeal, which could be the biggest abortion case at the Supreme Court in nearly 25 years.

The Supreme Court order will remain in effect at least until the court decides whether to hear the clinics' appeal of the lower court ruling, not before autumn.

If the court steps in, the hearing and the eventual ruling would come amid the 2016 presidential campaign.

An opposite ruling would have allowed the state to move ahead with regulations requiring abortion facilities to be constructed like surgical centers. Doctors at all clinics also would be required to have admitting privileges at a local hospital.

The clinics said enforcing the new regulations would lead to a second major wave of clinic closures statewide since the law was enacted in 2013. Texas had 41 abortion clinics in 2012; 19 remain.

The admitting privileges requirement already is in effect in much of the state. Stephanie Toti, a lawyer for the Center for Reproductive Rights that is representing the clinics, said some clinics that closed because doctors lacked admitting privileges might be able to reopen.

The regulations would have left the state with no clinic west of San Antonio. Only one would have been able to operate on a limited basis in the Rio Grande Valley.

The Supreme Court also is weighing an appeal from Mississippi, which is seeking to enforce an admitting privileges requirement that would close the last abortion clinic in the state. A different three-judge panel of the same federal appeals court, the New Orleans-based 5th U.S. Circuit Court of Appeals, has blocked the Mississippi law.

In November 2013, Justice Stephen Breyer wrote that four justices probably would want to review the constitutionality of the Texas regulations. Last year, the high court prevented enforcement while the case was on appeal to the 5th Circuit.

Backers of the regulations say they are common-sense measures intended to protect women. Abortion rights groups say the regulations have only one aim: to make it harder, if not impossible, for women to get abortions in Texas.

The case could be attractive to the justices because it might allow them to give more definition to the key phrase from their last big abortion ruling, Planned Parenthood v. Casey, in 1992. States generally can regulate abortion unless doing so places "an undue burden" on a woman's right to get an abortion.

Monday was the 23rd anniversary of the Casey ruling.

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Justices uphold Arizona's system for redistricting

By Mark Sherman
Associated Press

WASHINGTON (AP) - The Supreme Court on Monday upheld the power of independent commissions used by 13 states to draw congressional districts, in a ruling that could spur efforts in other states to reduce partisan influence in the creation of electoral districts.

The justices voted 5-4 to reject a constitutional challenge from Arizona's Republican lawmakers to the commission that the state's voters created in 2000. Among the other states affected is California, which uses an independent commission to draw electoral boundaries for its largest-in-the-nation congressional delegation.

"Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around," Justice Ruth Bader Ginsburg said in her opinion for the court.

Ginsburg said that there is "no constitutional barrier to a state's empowerment of its people by embracing that form of lawmaking." Justice Anthony Kennedy and Ginsburg's three liberal colleagues joined her opinion.

In dissent, Chief Justice John Roberts accused the majority of approving a "deliberate constitutional evasion."

"The court's position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this court," Roberts said. Justices Samuel Alito, Antonin Scalia and Clarence Thomas signed onto Roberts' opinion.

The Arizona case stemmed from voters' action in 2000. The legislature's Republican leaders filed their lawsuit after the commission's U.S. House map in 2012 produced four safe districts for Republicans, two for Democrats and made the other three seats competitive. Democrats won all three in 2012, but the Republicans recaptured one last year.

The argument against independent commissions rests in the Constitution's Election Clause, which gives state legislatures the power to set "the times, places and manners of holding elections for senators and representatives."

States are required to re-draw maps for congressional and state legislative districts to account for population changes after the once-a-decade census.

Some states have sought to rein in lawmakers' power over drawing political boundaries because the justices have been unwilling to limit excessive partisanship in redistricting, known as gerrymandering. A gerrymander is a district that is intentionally drawn, and sometimes oddly shaped, to favor one political party.

Analysts said Monday's decision could open the door to efforts in other states to create independent commissions to redraw congressional lines.

That would be likeliest in the 24 states that already use ballot initiatives, which let citizens bypass legislatures and directly put questions to voters, usually by collecting signatures on a petition.

"It leaves open the freedom for voters in states to experiment with ways to make their democracy better," said Michael Li, counsel at the New York University Law School's Brennan Center for Justice, which filed a brief supporting Arizona's commission.

Republicans employed an enormously successful strategy to take advantage of the 2010 census, first by winning state legislatures and then using that control to draw House districts to maximize their power. One measure of their success: In 2012, Republicans achieved a 33-seat majority in the House, even though GOP candidates as a group got 1.4 million fewer votes than their Democratic opponents.

Independent commissions such as Arizona's "may be the only meaningful check" left to states that want to foster more competitive elections, the Obama administration said.

Only Arizona and California essentially remove the legislature from the process, the National Conference of State Legislatures said in a brief supporting the Arizona GOP lawmakers' challenge.

Lawmakers' only contribution in those two states is picking commission members from a list devised by others. In the other states - Connecticut, Hawaii, Idaho, Indiana, Iowa, Maine, Montana, New Jersey, New York, Ohio and Washington state - lawmakers either get first crack at drawing districts, approve plans drawn by commissions or appoint commission members of their choosing, the conference said.

Supporters of the commissions point to more competitive races in both Arizona and California since these entities were created.

The case is Arizona State Legislature v. Arizona Independent Redistricting Commission, 13-1314.

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Associated Press writer Alan Fram contributed to this report.

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New hearings in North Carolina capital cases allowed

WASHINGTON (AP) - The Supreme Court has left in place lower court rulings ordering hearings over jurors in two North Carolina death penalty trials who reached beyond the jury room for biblical references to help their deliberations.

The justices on Monday rejected North Carolina's appeal of the two rulings by the federal appeals court in Richmond, Virginia.

In one case, a juror called her father in search of a biblical verse to help her decide between life and death for defendant Jason Wayne Hurst, who was sentenced to death for the 2002 shooting death of an acquaintance in Asheboro, North Carolina. The father pointed her to a verse containing the phrase "an eye for an eye."

The appeals court ordered hearings to determine if jurors were improperly influenced.

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Court declines to review Arizona, Kansas citizen proof rule

WASHINGTON (AP) - The Supreme Court will continue allowing residents of Arizona and Kansas to register to vote using a federal form without having to provide proof of citizenship.

The justices on Monday rejected an appeal from Republican officials in those two states who have sought to enforce laws requiring new voters to submit a birth certificate, passport or other papers documenting U.S. citizenship.

Supporters of the laws have said that they prevent noncitizens from voting, particularly those living in the U.S. illegally. Critics have said incidents of noncitizens registering to vote are extremely rare, and that such Republican-backed laws hurt voter registration efforts and disenfranchise voters from certain groups that tend to vote Democrat, including minorities and college students.

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Justices won't hear ex-Rep. Rick Renzi appeal of conviction

WASHINGTON (AP) - The Supreme Court won't hear an appeal from former Arizona Rep. Rick Renzi seeking a new trial after his conviction on public corruption, money laundering and other charges.

The justices on Monday let stand a lower court ruling rejecting arguments that prosecutors violated a constitutional clause by introducing evidence about Renzi's legislative work.

Renzi was convicted of conspiring to use his congressional seat to make two companies buy land owned by his former business associate so that the associate could repay a debt he owed to Renzi.

Renzi began serving a three-year prison sentence in February.

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Court stays out of Google appeal in Oracle dispute

WASHINGTON (AP) - The Supreme Court is staying out of a long-running legal battle between technology giants Oracle and Google over copyright protection for a computer program that powers most of the world's smartphones and computer tablets.

The justices said Monday they won't review an appeals court ruling that said software maker Oracle Corp. could copyright portions of the Java programming platform that Google Inc. used to build its popular Android software for mobile devices.

Oracle is seeking roughly $1 billion in damages for claims that Google stole some of the Java technology that Oracle acquired when it bought Sun Microsystems Inc.

A federal district court ruled in 2012 that federal copyright laws didn't cover the program. But the U.S. Court of Appeals for the Federal Circuit reversed, saying it was copyright protected.

Published: Wed, Jul 01, 2015

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