Tag Archives: administrative law

9th Circuit pesticide decision points out environmental hazards of D.C. swamp

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Scott Pruitt’s tenure at the EPA is worthy of derision, but the Obama EPA was far from stellar.

In a victory for farm workers, last Thursday the Ninth Circuit Court of Appeals ordered the Environmental Protection Agency (EPA)  to completely ban the use of the pesticide chlorpyrifos within 60 days.

While most comment on the decision seemed to criticize former EPA Administrator Scott Pruitt, who no doubt deserves the criticsm, the Ninth Circuit probably would not have ruled the way it did if the EPA under the Obama administration had not dithered in addressing the risks of chlorpyrifos.

What is chlorpyrifos and why is it dangerous?

Chlorpyrifos is a pesticide that is in the same chemical class as sarin gas. Chlorpyrifos can be toxic or even fatal for farmworkers exposed to it and studies show can contribute to genetic defects to children who are exposed to the chemical.  Unlike the popular chemical Round Up, that a jury recently found to have caused cancer for a California man, chlorpyrifos was banned for residential use by the EPA in 2002. However, the EPA still tolerates the chemical for agricultural use, wherein this court case began in 2007.

Background of the court case

In 2007, advocates for farmworkers and others filed a petition challenging the EPA’s tolerance for the use of chlorpyrifos in agriculture. In order to continue tolerating use of the chemical, the EPA would have to show no risk from the use of chemical. A 2008 EPA study showed the EPA couldn’t meet that burden. Another study in 2011 lead to the same conclusion.

Despite the findings of EPA scientists about the risks of chlorpyrifos in agricultural use the EPA took no action. Advocates for banning the chemical filed what amounted to a motion to compel against the EPA in 2014 which finally lead to a proposed rule in late 2015. Advocates filed another motion to implement the ban that the EPA fought in court.

Just when the EPA was ready to implement the rule, the Trump administration came in, under Scott Pruitt and denied the petition to ban chlorpyrifos. Farm worker advocates along with some state attorney generals filed an appeal in court The EPA, making no attempt to argue the merits of the claim, argued that the petitioners hadn’t “exhausted administrative remedies” or followed the proper procedure before litigating the case.

Federal District Judge Jed Rakoff, who was essentially filling in as an appellate judge in the Ninth Circuit, wisely rejected  the EPA’s argument.  He pointed out that allowing the EPA to argue the petitioners had not exhausted administrative agencies would just encourage the EPA to drag out rulings over 10 years and the course of three Presidential administrations.

A dissenting opinion cited to a Second Circuit Court of Appeals that held otherwise, which means the legal issue over how the EPA handles petitions to ban chemicals could be decided by the Supreme Court in the near future.

Political commentary

Reporting by Mike Elk of Payday Report raised concerns during the Obama administration about how the chemical industry was weakening and delaying EPA rule making on chemicals and workplace safety.  The opinion by Judge Rakoff describes how the Obama administration lollygagged in addressing the risks of chlorpyrifos despite two scientific findings by the agency about the danger of the chemical. There is a disturbing irony in the Obama administrations failure to protect farmworkers from chlorpyrifos. Obama’s slogan during his 2008 campaign “Yes We Can” was a translation of the phrase “Si Se Puede” used by farm worker union organizer Cesar Chavez.  Obama said early in his administration that “Elections have consequences.” One consequence of his administration was that a dangerous chemical known to be harmful to farmworkers and their families remained in use through the eight years of his administration.

As mentioned earlier, a state court jury in California found that the herbicide Round Up caused cancer for a California man and entered a $289 million dollar judgment against Round Up manufacturer, Monsanto. In contrast to the plodding, ineffective and lobbyist-driven administrative process that went on for for over a decade without resolution over chlorpyrifos, a citizen was able to get justice against a major corporation from a jury in state court. The contrast between the ongoing  chlorpyrifos debacle and the verdict in the Round Up case should re-enforce the importance of the Seventh Amendment right to trial by jury.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Can civil rights agencies help employees beat arbitration clauses?

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If confirmed, will Washington Nationals superfan Brett Kavanaugh just call balls and strikes when it comes to workplace justice issues?

The Lincoln Commission on Human Rights (LCHR) entered an award last month of $175,000 on behalf of a man who they found was discriminated against based on nationality and age.

While a six-figure judgment in favor of an employee in Lincoln is newsworthy in and of itself, the procedural back story of the case should be just as interesting to lawyers and observers of the legal system in light of recent Supreme Court decisions.

A federal judge overruled the employer’s motion to compel arbitration in the case. In a memorandum recommending the motion to compel arbitration be overruled a federal magistrate cited to the 2002 Supreme Court case, EEOC v. The Waffle House to hold that the Lincoln Commission on Human Rights was not a party to arbitration agreement and was free to pursue relief on behalf of the employee. The memorandum cited Iowa and Massachusetts cases applying Waffle House to state anti-discrimination agencies to find it applicable to the LCHR.

The ability of employees to use civil rights agencies as an end run around arbitration clauses, has taken new importance in the light of the Supreme Court’s recent Epic decision was which provided even more ability for employers to enforce arbitration agreements.

But there are some potential barriers for employees who wish to have an anti-discrimination agency pursue a discrimination claim on their behalf.

The most practical barrier is the lack of resources of civil rights agencies. In Nebraska, an employee has to wait several months before an investigator is assigned to their claim. This means that evidence gets spoiled and overworked investigators may not be as willing to pursue a case because of workload concerns. Without good evidence an agency is not going to pursue a claim on behalf of an employee in the public hearing process.

The inadequate funding of administrative agencies stems from a general hostility that many conservatives have towards the so-called “administrative state” or executive agencies that generally regulate the economy. (These same folks are deferential to executive agencies that comprise the national security state and law enforcement) This hostility is also evidenced in judicial skepticism of administrative agencies. This skepticism was on display from the Supreme Court in the Masterpiece Cakeshop decision. In Masterpiece the court found that comments made by a state human rights commissioner were sufficient evidence of bias to overturn a decision finding a business owner who refused to bake a cake for a gay wedding had committed illegal discrimination. I would expect more of that heightened scrutiny of decisions made by civil rights agencies in the future.

Finally, Waffle House may not remain controlling law. Waffle House was decided by a relatively narrow 6-3 decision with Justice Clarence Thomas writing the dissenting opinion. Legal journalist Ian Millhiser has deemed Thomas to be the most influential justice  because of his long record of dissenting and concurring opinions that are increasingly being adopted as law due to changes in the composition of the court.

Since Waffle House was decided in 2002, the Supreme Court has added Chief Justice John Roberts and Associate Justices Neil Gorsuch and Samuel Alito. Gorsuch is noted for his particular hostility to administrative agencies.  Supreme Court nominee and DC Circuit Court Judge Brett Kavanaugh’s views on administrative agencies allegedly aren’t as strident  as those of his fellow Georgetown Prep alum, Neil Gorsuch. But an employer looking to overturn the Waffle House decision may find a friendly audience with a five-justice majority comprising Justices Roberts, Thomas, Alito, Gorsuch and Kavanaugh.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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