Emails, Jerry Strickland, communications director, Attorney General Greg Abbott, July 1 and 3, 2014
1:24 p.m.
Response to be attributed to Jerry Strickland, Office of the Attorney General, State of Texas:
As a former Supreme Court Justice and District Court Judge who has rendered decisions in hundreds of cases and on thousands of motions, Greg Abbott knows the legal difference between a decision on a motion or on a procedural issue, and the final decision in a case.
It would be an embarrassment for a lawyer to say a decision on a motion or on a procedural issue was a win in a case. There are a myriad of decisions on motions and court rulings throughout the process. No one should know that better than Senator Davis who was a part of several motions and court rulings in the Section 5 redistricting case, only to lose at the U.S. Supreme Court.
If you want to talk about the work really happening this month at the Attorney General’s Office:
· look no further than Monday’s win in the whooping crane case that protects ranchers, farmers and communities (June 30, 2014);
· look no further than our successful prosecution and the sentencing of a Bastrop teacher for sexually assaulting 2 students (June 20, 2014). This occurred AFTER two of the supposed losses listed by Davis and before her speech. Thus wins like this and other wins were purposefully omitted in Davis' analysis. This case was published in the AAS and was easy to find.
· or even peel through Davis' distortions and see that the EPA case she cites was actually a WIN for the OAG because we won on the issues we argued – U.S. Supreme Court ruled that the EPA’s greenhouse gas permitting scheme ignored federal law, exceeded the authority granted the EPA by Congress, and violated the federal Clean Air Act (June 23, 2014). No amount of mischaracterization by Davis can alter a Supreme Court decision that decisively ruled in favor of the State's argument -- notwithstanding that other parties to the lawsuit may have lost issues for which they argued.
But since you brought up the four cases, here is information about each.
1.) Employment case: The June 16 decision was merely a procedural one that determined whether the case could even be filed. Not a single fact in that employment case has been before a judge. Citing the decision as a loss when the case hasn’t even gone before a judge is like saying a team won the game because they won the pre-game coin flip. Moreover, if Davis was suggesting that the last 4 publicly discussed cases were loses (the clear intent of the comments) then this decision doesn't make the cut because the publicly discussed criminal conviction against a teacher occurred after this employment decision.
2.) Fees case: It may come as a surprise to Senator Davis that the order she references was stayed (it was halted), so there is no effective order in the case. In fact the ordered referenced was stayed by the very same judge that made it because “the Court should have stayed its Order in the first place.”
An excerpt from the Order Granting Motion to Stay:
Nonetheless, the Court recognizes that the situation that the parties present is uncommon and, as such, the Court should have stayed its Order in the first place. Accordingly, it is hereby
ORDERED that Texas’s Motion to Stay, Dkt. 269, is GRANTED; and it is
FURTHER ORDERED that the Order that the Court entered on June 18, 2014,
Dkt. 266, is STAYED pending appeal. Texas is not required to file a supersedeas bond.
So, contrary to Sen. Davis' contention, the last "decision" by the court, the last action that it took, was actually IN FAVOR OF THE STATE, not against the state. Clearly the court "GRANTED" the relief we requested. Thus, as opposed to this case being cited as a loss it should be listed as a win under the way Sen. Davis tallies wins and losses.
3.) Recusal motion: The state filed a recusal motion to allow taxpayers and all Texans to know all communications made to the Judge as he decided the school finance decision. Information in a trial involving taxpayer dollars should not be kept secret, and we stand behind that principle. And, like the first example, this was not a decision on the merits of the case. As a reminder, whatever and whenever the trial court rules in the school finance trial, the case will not be over until the Texas Supreme Court rules in the matter. No matter what happens on any day, in any motions in the school finance case, those decisions along the way are not the final word. That final decision will come from the Texas Supreme Court, not a procedural motion along the way.
4.) EPA Decision: The U.S. Supreme Court overturned the EPA’s illegal greenhouse gas permitting scheme after determining that it ignored federal law, exceeded the authority granted to the EPA by Congress and violated the federal Clean Air Act. That was precisely what the state argued and thus, this was a win for the Office of the Attorney General. Senator Davis may have superficially skimmed some stories about the decision that called it a split ruling – that is because the State and private industry had separate teams of lawyers working on this case because their interests and goals were not fully aligned. Industry lawyers made arguments that were important to them.
State lawyers made arguments that were important to us. Industry’s arguments failed. Our arguments prevailed. The State of Texas argued that the EPA violated the federal Clean Air Act when it “replaced unambiguous numerical permitting thresholds in the PSD and Title V programs with numbers and metrics of EPA’s own creation, and then applied those agency-created criteria solely to greenhouse-gas emissions.” The U.S. Supreme Court agreed with this argument, and ruled that the EPA’s actions are not permitted.
The state's primary argument is whether or not the EPA, or any other rulemaking bureaucracy, can making sweeping changes to its authority by promulgating rules that change clear statutory text. On this point, the Supreme Court ruled in our favor. We cited many excerpts in our release from that opinion that make this very clear, such as:
“We conclude that EPA’s rewriting of the statutory thresholds was impermissible and therefore could not validate the Agency’s interpretation of the triggering provisions. An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always ‘give effect to the unambiguously expressed intent of Congress.’ It is hard to imagine a statutory term less ambiguous than the precise numerical thresholds at which the Act requires PSD and Title V permitting. When EPA replaced those numbers with others of its own choosing, it went well beyond the ‘bounds of its statutory authority.’” (pg. 21)
“Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers. Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, ‘faithfully execute[s]’ them. The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice.” (pg. 23)
“In the Tailoring Rule, EPA asserts newfound authority to regulate millions of small sources—including retail stores, offices, apartment buildings, shopping centers, schools, and churches—and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate. We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” (pg. 23)
While the State focused its arguments on the Tailoring Rule—which the Court overturned—private industry lawyers focused on attacking the EPA’s authority to subject large industrial sources of emissions to Best Available Control Technology standards for GHGs. That argument—which was never an emphasis for the State—was rejected by the Supreme Court.
Even under Davis's own characterization standards, 3 of the last 4 publically discussed legal matters by the Attorney General's office before her speech were victories. The only other matter, the judicial recusal issue, is a procedural issue that no lawyer would characterize as either winning or losing a case.
From: "Selby, Gardner (CMG-Austin)" <wgselby@statesman.com>
Date: July 3, 2014 at 1:55:22 PM CDT
To: "Strickland, Jerry"
Subject: Lyle Denniston, SCOTUSblog, on if Texas won anyting in the EPA case
Denniston answered our inquiry with this email, fyi:
Texas's AG filed a brief in these cases on behalf of his state and 11 others. I don't know, of course, what the AG may have had in mind about the scope of the victory he claimed for his office. The brief the states filed paralleled arguments made by the business firms' lawyers, in their written and oral arguments, on the argument -- which did prevail -- that EPA could not bootstrap its regulation of greenhouse gases from motor vehicle exhausts into a broad regime of regulating greenhouse gases from industrial plants.
But Texas and the other states would have been able to claim complete victory if the Court had ruled that EPA had no authority to regulate greenhouse gases, at all, on emissions from power plants and other stationary sources. The Court did not go that far. Instead, it ruled that EPA could regulate greenhouse gases from sources that already were obliged to curb their air pollution. And that, the Court said, would allow EPA to regulate 83 percent of greenhouse gas sources, instead of 86 percent that would have come under EPA regulatory authority if the EPA's broadest argument had prevailed.
So, if one understands the Texas position to be that EPA should have no authority to regulate greenhouse gases from any source other than auto exhausts, they did not win on that point.
The state AGs' amicus brief in fact just piggybacked on the load carried by lawyers for the industry. The states won as much as the business lawyers did, but not on their own independent advocacy.
(Strickland)
3:45 p.m.
July 3, 2014
You and Lyle may be viewing this as an all or nothing battle. That's an overly narrow reading of what the case was about. This was about separation of powers, and the limits of EPA's authority. The Court rebuked what they saw as a federal government that tried to rewrite the rules and laws, without legislative approval. This is a victory.