Remembering the soda portion-cap rule

While overshadowed by the end of the U.S. Supreme Court term and other news, the death of Mayor Bloomberg’s groundbreaking soda portion-cap rule before the New York Court of Appeals on June 26 merits critical attention.  I have written about the rule extensively in prior posts and a law review article.  Below the jump, I’ll focus on two important aspects of the court’s decision:  1) the application of the state constitutional law precedent of Boreali v. Axelrod (addressed in detail in the amicus brief I joined), which holds that when an agency makes “policy” it unconstitutionally encroaches upon the legislative branch, and 2) the court’s rejection of the City’s argument that the Board of Health exercises “legislative power.” Continue reading

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New York soda oral argument

A video of last week’s oral argument before the New York Court of Appeals in the challenge to the New York City soda portion-cap rule is available here.  (In releasing videos of its arguments, albeit a week after the fact, the New York Court of Appeals is decidedly not like the U.S. Supreme Court.)  Notable from the argument is the express and repeated insistence by the city’s lawyer, Richard Dearing, that the Board of Health exercises “legislative powers” delegated directly by the state legislature, which means that only the state legislature — and not the city council — can overrule the Board.  As I have explained here, and argued here,  this misguided argument plays into the soda industry’s view that the Board is a runaway “expert” agency lacking any democratic moorings.  Why not acknowledge the city council’s power to overrule the Board?  Mayor De Blasio would likely veto any such attempt if the rule stands, or he would at least be able to negotiate with the council from a position of strength.

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New York soda portion-cap litigation

The litigation challenging New York City’s sugar-sweetened-beverage portion-cap rule continues, with the city’s final appeal set to be argued before the New York Court of Appeals on June 4.  I submitted this amicus brief in support of the rule’s validity, along with five colleagues – Rick Hills of NYU, Michael Herz of Cardozo, Kathleen Morris of Golden Gate, Clayton Gillette of NYU, and Rick Su of Buffalo – courtesy of our lawyers at Reese Richman.  Our brief is clearly having an impact on framing the litigation, as evidenced by the city’s response to amici, and the soda industry’s.

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Cherren on Fracking

Speaking of fracking, Robert D. Cherren, an associate at Squire Sanders in Cleveland, has posted “Fracking Bans, Taxation and Environmental Policy” (forthcoming, Case Western Law Review) on SSRN.  The article observes that, “Local governments that draw little additional revenue from fracking are more likely to ban the practice because of environmental concerns.”  It is an interesting read in light of current events.

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PA sup ct fracking decision – Robinson Twp. v. Pa.

If you teach or practice in local government law, property, state constitutional law, or environmental law, I commend to your attention the Pennsylvania Supreme Court’s decision in Robinson Township v. Pennsylvania, which invalidated the state law – “Act 13” – that controversially sought to facilitate hydraulic fracturing, or “fracking,” for natural gas throughout the state.  Act 13 preempted much, if not all, of local control over land use with respect to fracking, and even made local governments liable for money damages if they obstructed the fracking permitting process.

The Pennsylvania supreme court released its opinion on Dec. 19, 2013, which allowed the decision to get lost in the holiday news abyss.  The majority and concurring opinions adopt novel, pathbreaking, and potentially destabilizing rationales, which I summarize below the bump. Continue reading

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Oregon state legislature preempts local regulation of GMO’s

As is its wont, the Oregon State Legislature today passed a bill — as part of a brief “special” session supposedly dedicated to tax and pension reform — that preempts local regulatory authority.  Specifically the bill preempts the authority of local governments to regulate the use of genetically modified organism (GMO) seeds within their jurisdictions.  Opponents of the law say it is essentially a gift to Monsanto.  Governor Kitzhaber is expected to sign the bill soon.

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Appeals court affirms injunction of New York soda portion-cap rule (erroneously called “ban”)

The New York Supreme Court, Appellate Division, First Department, today affirmed the trial court order enjoining the portion-cap rule on sugar-sweetened beverages promulgated by the New York City Board of Health.  Because Mayor Bloomberg was influential in promoting this rule (as detailed in my forthcoming article in the Fordham Urban Law Journal, “Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson”), it is often referred to as the Bloomberg Soda “Ban,” even though the rule did not ban any soda.

In its opinion, the Appellate Division held that the ban violated New York state’s curious doctrine of “separation of powers,” under Boreali v. Axelrod (N.Y. 1989).  This was a clarification of the trial court opinion, which seemed to invalidate the rule both for violating separation of powers and for being “arbitrary and capricious.”  Boreali, as I explain in my paper, relies heavily on nondelegation reasoning that has largely been abandoned at the federal level, constricting agency power based on the dubious premise that administrative “rulemaking” and legislative “policymaking” can be neatly separated.  There is nothing wrong with a state retaining its own distinctive brand of constitutional interpretation, of course, but there are good reasons to be skeptical of Boreali‘s “test” for whether administrative rulemaking has encroached on the supposedly separate sphere of legislative “policymaking.”

Boreali, as applied by the Appellate Division, requires an almost monastic approach to administrative rulemaking in which agencies like the Board of Health do not consider anything but health concerns in promulgating their regulations.  Because the Board’s exemption of certain drinks (like milk-based drinks) and retail establishments was based in part on practical or economic concerns, the court held that the Board had engaged in “policymaking” outside its proper realm.  Indeed, the court even concluded that because the rule “manipulates choices to try to change consumer norms,” it concerns itself with non-health-related issues, as if consumer norms were not integrally related to public health!

Other discouraging aspects of the Appellate Division opinion include its narrow reading of the Board’s authority under the city charter (which grants the Board the power to regulate “all matters affecting the health of the City”).  Like the trial court, the Appellate Division believes that the Board’s powers are limited to “sanitary” matters, and dismisses the notion–despite myriad scientific data–that soda consumption is a health hazard.

The Bloomberg administration may appeal the decision to the New York Court of Appeals (the state’s highest court), which has the discretion to decline hearing the appeal.  Regardless, the momentum behind the regulation has been nearly killed by these decisions.  Businesses like Dunkin’ Donuts were prepared to comply, and I have no doubt that the rule could have been smoothly implemented.  With Bloomberg’s term almost expiring and his potential successors lukewarm, if not hostile, to the rule, the chance of this innovative approach to fighting obesity and dental decay actually taking effect now appears slim.

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Local government law works-in-progress conference – Chapman Law, Orange, CA, Oct 25-26

Glad to see this is continuing.  I attended the inaugural conference at Marquette in Milwaukee last September and had a great experience:

Chapman University School of Law will be hosting the 2nd Annual Local Government Law Works-in-Progress Conference on Friday, October 25, 2013 and Saturday, October 26, 2013.  A formal call for papers will follow during the summer.   Registration will take place in late August or early September, and the deadline for papers and abstracts will be in late September or early October.  The conference will provide an opportunity for local government law scholars to present works-in-progress and receive feedback from colleagues.  Questions should be directed to Kenneth Stahl at kstahl@chapman.edu.

I hope I can make it to beautiful Orange, Cal., in late October and you can too!  (FYI, for those with small children, it’s very close to Disneyland.)

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NY trial court nixes state law on city taxis

Here’s an interesting one:  the Bloomberg administration apparently could not get the city council to pass the taxi cab reform legislation it desired, so it went straight to the state legislature to pass the law implementing its proposed reforms.  The legislation was then challenged as an unconstitutional regulation of “local” affairs under the New York Constitution’s Home Rule clause, in part because the New York City Council never sent a “home rule message” – a request that the state legislature pass a law regarding a local matter – to the state legislature.  Somewhat ironically, the city law department argued that the state law was not an unconstitutional infringement on local power, whereas the opponents of the law (the taxicab industry and others)  argued that it was.  Judge Arthur F. Engoron, of the New York Supreme Court, in a colorful opinion, invalidated the law.

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