News

Supreme courtIn a 6-3 decision released today, the U.S. Supreme Court ruled that the state Board of Dental Examiners lacked immunity from antitrust laws and could not enforce regulations that effectively limit competition.

The case, NC Board of Dental Examiners v. FTC, arose from the Board’s repeated efforts to stop non-dentists from rendering teeth-whitening services, saying that such services constituted the “practice of dentistry” subject to its regulation.

After years of cease-and-desist orders issued by the Board to unlicensed providers of that service, the Federal Trade Commission stepped in and accused that body of stifling competition. In response the Board argued that as a state agency it was immune from antitrust laws.

The FTC and the Fourth Circuit disagreed, finding that the Board wasn’t really acting at state direction and was more akin to a private group using state regulation to restrain competitors.

The Supreme Court agreed.

Writing for the majority, Justice Anthony Kennedy found that because the Board was comprised mostly of dentists practicing and competing in the teeth-whitening market with non-dentists, it could only invoke state-action antitrust immunity if the state actively supervised the its actions concerning that service.

“The Board does not claim that the State exercised active, or indeed any, supervision over its conduct regarding nondentist teeth whiteners; and, as a result, no specific supervisory systems can be reviewed here,” Kennedy wrote.

Beyond the specific North Carolina situation, Kennedy — who was joined in the decision by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg,  Stephen Breyer, Sonia Sotomayor and Elena Kagan —     offered this guidance:

The [antitrust laws] protect competition while also respecting federalism. [They] do not authorize the States to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies. If a State wants to rely on active market participants as regulators, it must provide active supervision if state-action immunity  is to be invoked.

Justice Samuel Alito dissented, joined by Justices Antonin Scalia and Clarence Thomas.

The full opinion is here.

 

News

U.S. Attorney’s offices across the state filed a series of criminal cases today accusing Duke Energy of negligent discharge of coal ash and coal ash wastewater into rivers adjacent to company coal ash plants.

In Raleigh, the misdemeanor charges were filed in connection to spills at the H.F. Lee Steam Plant.

In Charlotte, similar charges were filed arising out of spills at the Riverbend and Asheville plants, according to the Charlotte Observer.

And in the state’s Middle District in Winston-Salem, charges were filed for negligent discharge at the Dan River Steam Station in  Eden and permitting and inspection violations at the Cape Fear Electric Steam Station in Moncure.

The charges follow Duke’s announcement earlier in the week of a possible $100 million settlement of the federal government’s investigation into spills at the plants.

In a statement released late yesterday, the company said that it had reached a proposed agreement with the federal government settling the charges that includes payments of $68.2 million in fines and restitution and $34 million for community service and mitigation — to be borne by shareholders, not customers.

The settlement agreement, which as of the time of this post has not been confirmed by the U.S. Attorney’s offices involved, must be approved by the court. 

It also does not resolve claims in pending civil cases arising out of coal ash spills and does not appear, per the Duke Energy statement, to provide specifically for clean up at each of the company’s plants in North Carolina.

In response to the announcement, Frank Holleman, an attorney with the Southern Environmental Law Center who represents several citizens groups in those pending actions, said in a statement:

Today, Duke Energy has admitted that it committed environmental crimes in its coal ash storage across North Carolina.  We informed Duke Energy and DENR of these violations of the Clean Water Act in 2013, yet Duke Energy’s polluting coal ash storage has yet to be cleaned up and has now resulted in criminal prosecutions.  The important points is this:  Duke Energy cannot buy its way out of its coal ash scandal, it has to clean its way out.  Duke Energy and its executives must show the people of North Carolina that they are sorry for these crimes by moving the dangerous and polluting coal ash to safe, dry, lined storage away from our rivers and drinking water supplies.

Read the Criminal Informations in the Raleigh cases below.

Duke Criminal 1 by NC Policy Watch

Duke Energy Criminal 2 by NC Policy Watch

News

The Justice Department will seek an emergency order from the 5th U.S. Circuit Court of Appeals allowing the federal government to move forward with the President’s immigration programs while it appeals a Texas federal judge’s ruling halting those programs, according to the New York Times.

The move follows on the heels of Monday’s late night ruling by U.S. District Judge Andrew S. Hanen that the president failed to adhere to basic administrative procedures when issuing orders that would have provided sweeping relief to as many as five million undocumented immigrants.

Here’s a quick timeline of what might happen next, courtesy of Vox:

  1. This is a relatively aggressive move by the administration. The court battle over the president’s executive actions will still take a long time, but the stay means that the next phase will happen very quickly.
  2. The 5th Circuit Court of Appeals will now have to consider the stay. Its ruling could come within days of the filing, but will likely take a few weeks.
  3. The 5th Circuit is one of the country’s most conservative appeals courts, making it more likely that they might side with the lower-court judge and keep the president’s new “deferred action” programs from going into effect.
  4. If that happens, the Obama administration would be expected to appeal to the Supreme Court.
  5. Ultimately, if the administration wins a stay, the deferred-action programs could start back up in only a few weeks.
  6. If the Supreme Court sides with the states, the programs will be frozen for a matter of months or years while the case makes its way through the courts at the usual pace.

 

 

News

Add reforming the country’s criminal justice system to the list of things that make strange bedfellows.

In an announcement expected today, the Center for American Progress and Koch Industries — arch enemies in the political arena — will disclose their backing of the newly-formed Coalition for Public Safety, an organization designed to launch “a multimillion-dollar campaign on behalf of emerging proposals to reduce prison populations, overhaul sentencing, reduce recidivism and take on similar initiatives,” according to the New York Times.

Others getting behind the coalition include the American Civil Liberties Union, Americans for Tax Reform, the Tea Party-oriented FreedomWorks, the Faith and Freedom Coalition, and the Leadership Conference Education Fund.

The coalition starts out with $5 million in funding from Koch Industries,  the Laura and John Arnold Foundation, the Ford Foundation and the John D. and Catherine MacArthur Foundation, which it will use to jump start the work it describes on its website:

The Coalition will work across the political spectrum to pursue a comprehensive set of federal, state, and local criminal justice reforms to reduce our jail and prison populations and associated costs; end the systemic problems of overcriminalization and overincarceration — particularly of low-income communities and communities of color; ensure swift and fair outcomes for both the accused and the victim; and make communities safe by reducing recidivism and breaking down barriers faced by those returning home after detention or incarceration.

As described in the Times, the coalition’s goal is “to leverage the broad reach of the group’s partners and financial backers to build public support for overhaul efforts through research and education campaigns, among other initiatives. The ideological spread should also allow them to reach out credibly to lawmakers of both parties.”

News

Duke Energy Coal Ash Spill in North CarolinaIn case you missed it, WRAL is reporting that Duke Energy disclosed negotiations with the U.S. Attorney’s Office in Raleigh for a possible $100 million settlement of the pending coal ash criminal investigation that office is conducting.

Per WRAL:

The details were contained in an earnings report filed Wednesday with the Securities and Exchange Commission.

“We believe we are close to an agreement that, if approved by the court, would resolve the U.S. government’s ongoing grand jury investigation into the February 2014 Dan River coal ash spill and ash basin operations at other North Carolina coal plants,” Chief Executive Lynn Good said in a news release to announce its 2014 earnings.

The release said the proposed agreement “could be reached and filed in the next several days for consideration by the court.”

Duke has set aside $100 million “related to the company’s assessment of probable financial exposure related to any agreement,” the release said.

Not surprisingly and likely not happy about Duke Energy getting out ahead of any official announcement, U.S Attorney Thomas Walker issued his own statement:  “No comment.”