Print this page

Busy End of Supreme Court Term Produces Important Land Use Cases Featured

Written by ========

On three days in June, the U.S. Supreme Court decided cases making new law on signs and free speech, fair housing litigation, and air pollution regulation, and. We look at them in turn, in brief.

Reed v. Town of Gilbert, Arizona

The sign case, with wide free speech implications, is Reed v. Town of Gilbert, Arizona, No. 13-502 (Sup.Ct. June 18, 2015), 576 U.S.____(2015).

A municipal sign code imposed more stringent restrictions on signs directing the public to the meeting of a non-profit group (a church) than on signs conveying other messages (such as political ads). The Supreme Court ruled that this is content-based regulation of speech that cannot survive the test of strict scrutiny.

This case was decided 9-0. The Opinion by Justice Thomas expands the meaning of “content-based” to reach many more types and varieties of signs that are subject to local sign regulation, even if they were of a nature formerly thought to be content neutral. Now, they are presumptively unconstitutional. Concurring opinions warn of this overreach.

On remand from the Supreme Court, the Court of Appeals struck down the Town of Gilbert ordinance. Other federal courts since Reed have invalidated laws barring panhandling, automated phone calls and, most recently in New Hampshire, “ballot selfies.”

This case is regarded by many commentators as vastly expanding free speech rights. The wording of Thomas’ decision seems to reach all kinds of rules distinguishing between types of speech.

This writer feels that a case presenting simple facts (requiring quicker removal of church signs than political signs) gave rise to a ruling making lots of state, county and municipal laws subject to the most searching form of First Amendment review. This puts the burden on the government to prove the challenged law is “narrowly tailored to serve compelling state interests.”

This test is very hard for a sign or speech rule to survive. As the New York Times observed on the Reed decision: “You can stare at those words as long as you like, but here is what you need to know: Strict scrutiny, like a Civil War stomach wound, is generally fatal.” (NYT 8.18.15, p.A18)

The fair housing case is Texas Department of Health and Community Affairs v. Inclusive Communities Project, No.13-1371 (Sup.Ct. June 25, 2015), 576 U.S.___(2015)

The federal Fair Housing Act prevents discrimination in sale and rental of housing. Disparate-impact claims are cognizable under the FHA.

This case was decided 5-4. The Opinion by Justice Kennedy held that the FHA focuses on the consequences of the actions rather than actor’s intent, similar to Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act, enacted about the same time with disparate-impact liability.

Consequently, the Supreme Court ruled, disparate-impact liability is consistent with FHA’s purpose to prevent discriminatory housing practices, as it allows plaintiffs to counteract unconscious prejudices and disguised discrimination that may be harder to uncover than disparate treatment.

The ICP had claimed that the TDHCA granted tax credits disproportionately to developments within minority and Caucasian neighborhoods, leading to concentration of low-income housing in minority neighborhoods, perpetuating segregation in violation of the FHA.

At trial, ICP had showed discrimination by disparate impact using statistical allocation of tax credits, which the Federal District Court ruled was sufficient to prove a prima facie case. Unable to show no less discriminatory alternatives existed, the TDHCA lost.

The U.S. Court of Appeals had upheld this result as consistent with regulations of HUD, the agency tasked with implementing the FHA.

The Supreme Court agreed. While this case is a block-buster in the fair housing field, allowing suits based on disparate impact, it remains a requirement under the law that a prima facie case for disparate-impact liability must meet a robust causality requirement. Evidence of racial disparity on its own is not sufficient.

The air pollution case is Michigan v. Environmental Protection Agency, No. 14-46 (Sup. Ct. June 29, 2015), 576 U.S.___(2015)

Here the U.S. EPA had interpreted 42 U.S.C. §7412(n)(1)(A) of the Clean Air Act, which requires the agency to regulate power plants when “appropriate and necessary,” to allow it to consider costs (to industry) after it had made that initial decision to regulate. The Supreme Court ruled this was an unreasonable interpretation of the CAA section at issue.

This case was decided 5-4. The Opinion by Justice Scalia ruled that when Congress orders an agency to begin regulating an industry, but says it should do so only if “appropriate and necessary,” the agency must take costs into account before it issues any orders.

EPA’s approach to regulating mercury and other toxics (the “MATS” rule) had been challenged by two dozen states and trade groups representing the electric generating and coal mining industries.

EPA was ruled to be wrong in refusing to make its cost-benefit analysis upfront, before starting any regulatory program, preferring to review cost-benefit when imposing plant-specific controls in regulations promulgated later.

This decision has the effect of temporarily blocking EPA from regulating power plants for mercury (potentially applicable to many other pollutants). It is important to recognize, however, that the ruling does not affect EPA’s legal authority to regulate in this area of air pollution.

On that score, the majority opinion by Justice Scalia says that EPA does not have to follow any particular method of gauging costs, but it has to fashion some way to calculate that prior to doing any regulating.

Fortunate for EPA, not every act it administers reads the same way as this section of the CAA for air toxics.

Read 2531 times Last modified on Tuesday, 03 January 2017 16:40
Gregor I. McGregor, Esq.

GREGOR I. McGREGOR, Esq. is the founder of New England’s oldest environmental law firm McGregor & Associates, PC in Boston, formed in 1975 and now McGregor & Legere, PC. The firm handles all aspects of environmental law, land use, real estate, and related litigation. The firm is a founding member of the Environmental Law Network (ELN), an alliance of specialty law firms, in the United States and abroad, sharing their legal expertise and practical experience for the benefit of their clients. Mr. McGregor enjoys Martindale-Hubbell’s highest rating for attorneys (AV).

In 45 years of environmental practice, Mr. McGregor's cases in court broke new ground in the law of Environmental Impact Statements under the National Environmental Policy Act (NEPA) and Massachusetts Environmental Policy Act (MEPA), wetland and floodplain protection under the Massachusetts Wetlands Protection Act, hazardous waste cleanup liability and cost-recovery under the Massachusetts Superfund, reduced taxes and tax exemptions for qualified land conservation transactions, constitutional protections for open space and parkland, Home Rule environmental ordinances and bylaws of cities and towns, law enforcement and contempt remedies, and the constitutional doctrine of Regulatory Takings.

Before 1975, Mr. McGregor was an Assistant Attorney General of Massachusetts and the first chief of the Attorney General’s Division of Environmental Protection. In that capacity he advised and represented the Commonwealth during the formative years of Massachusetts environmental statutes, agencies, regulations, enforcement and cases in court.

Mr. McGregor is editor of the two-volume treatise on Massachusetts Environmental Law, published by Massachusetts Continuing Legal Education, Inc.(MCLE). He is co-chair of MCLE’s annual Environmental, Land Use, and Energy Law Conference and MCLE’s Real Estate and Environmental Law Curriculum Advisory Committee. He received from MCLE in 2013 its Scholar-Mentor Award recognizing his dedication to legal scholarship and leadership.

Mr. McGregor chairs the Environmental Committee of the Real Estate Bar Association for Massachusetts (REBA) and serves as a member of the REBA Board of Directors. He is an active member of the Massachusetts Municipal Lawyers Association (MMLA), which honored him for his career contributions to legal education and effective advocacy on the Home Rule Doctrine. At the National CLE Conference in Vail, CO, Mr. McGregor co-chairs an annual seminar on Environmental Law, Land Use, Energy & Litigation for attorneys from across the United States.

Mr. McGregor is a long time member of the board of directors of the Massachusetts Association of Conservation Commissions (MACC) having served as Board President twice. He has handled several cases for MACC as amicus and is a regular presenter at their annual meeting.

Mr. McGregor is a graduate of Dartmouth College and Harvard Law School.

View Attorney McGregor's Case List >>

Latest from Gregor I. McGregor, Esq.

Related items