Volume 77, Issue 3

 Complete Index of Volume 77, Issue 3


Articles

Precarious Possession

John A. Lovett

Acquisitive prescription is a time-honored institution in civil law property regimes generally and in Louisiana property law in particular. Precarious possession is an equally important concept. A recent Louisiana Supreme Court decision, Boudreaux v. Cummings, 167 So.2d 3d 599 (La. 2015), has raised important questions about the intersection of acquisitive prescription and precarious possession in Louisiana law. This article reconstructs the law of precarious possession to answer some of those questions. It traces how Louisiana’s two-tier institution of good and bad faith acquisitive prescription emerged from Roman law and pre-codification French and Spanish law, discusses how French commentators interpreted their codified version of that law and approached the problem of precarious possession with caution, and defends the continuing viability of Louisiana’s two-tier institution of acquisitive prescription. The article then reviews a significant body of Louisiana case law addressing precarious possession in the context of possessory actions and acquisitive prescription. It demonstrates that in two categories of cases—those involving true strangers and persons involved in contractual or legal status relationships—Louisiana courts reach defensible and consistent outcomes. But it argues that in a third category of cases—those involving neighbors who know each other well or members of the same close-knit community—courts face acute challenges and produce inconsistent results. The article contends that to resolve this third category of cases with greater sensitivity to the virtue of property sharing and to the specific relational context of these disputes, Louisiana law would benefit from the adoption of a presumption of sharing and concomitant indicia of giving or renunciation.


A First Amendment Deference Approach to Reforming Anti-Bullying Laws

Emily Suski

This Article explores the problems associated with school exclusion as a response to bullying in light of the complicated nature of the problem and the attendant First Amendment concerns. It argues in favor of drawing on First Amendment jurisprudence, particularly by deconstructing rationales for the deference afforded schools to suppress student speech, to develop better, more comprehensive legal approaches to combatting bullying that also address those First Amendment concerns. In doing so, it also seeks to fill a gap in the literature on bullying. Although scholars have explored the limits that the Constitution, including the First Amendment, places on antibullying laws, they have not done so in light of the complicated nature of the problem, the interventions called for in response, or by examining the rationales for public school deference to suppress student speech.


Seeking a Definition of Medical Futility with Reference to the Louisiana Natural Death Act

Frederick R. Parker Jr.

This Article addresses the specific issue of how the Louisiana Act might inform the question of whether, or in what circumstances, treatment can be so futile that a patient has no positive right to receive it. As this issue most commonly arises in the context of permanently incapacitated patients whose surrogates speak on their behalf, it would be appropriate to first consider the relevance of a patient’s decisional capacity to the question. As a preliminary matter, this Article begins by discussing the concept of personhood and the relevance of capacity to the right of a severely incapacitated patient to accept or refuse treatment.


Domestic Drone Surveillance: The Court’s Epistemic Challenge and Wittgenstein’s Actional Certainty

Robert Greenleaf Brice & Katrina L. Sifferd

This Article examines the domestic use of drones by law enforcement to gather information. First, Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II then explores philosopher Wittgenstein’s notion of actional certainty. Part III discusses how the theory of actional certainty can apply to the Supreme Court and its epistemic challenge of determining what is a “reasonable” expectation of privacy. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment.



Comments

Mind the Gap: Bridging Gender Wage Inequality in Louisiana

Katilyn Hollowell

Currently, a woman in Louisiana has several methods to claim wage discrimination, including filing a claim under federal or state law. However, these laws are insufficient and do not offer adequate protections to employees, specifically because Louisiana operates under two equal pay regimes, thus affording better protections to one group of working women over others. Louisiana employees need a new statutory regime that is efficient, clear, and gives all employees equal rights and protections regardless of gender or employer. This regime should provide protection to both public and private employees in Louisiana. Therefore, the Louisiana Legislature should modify and pass Senate Bill 219, which failed during the 2015 Regular Legislative Session.

Unveiling Management’s Crystal Ball

Eric R. Harper

Have you ever wanted to look into a crystal ball and predict the future Although not always accurate, most companies have the ability to look into their “crystal ball” and make predictions for the future of the business. Companies may disclose this forward-looking information to shareholders or potential investors, but may also choose not to unveil the crystal ball, considering that the predictions could have a negative impact on their current stock prices. If a company’s investors suspect a company’s statements were materially false or misleading, the investors may bring a securities fraud class action lawsuit, claiming the company omitted certain material forward-looking information that likely would have had a negative impact on revenues and profits.

Hey Employer, Did You “Notice” My Text Message?

Melissa J. Shaffer

Part I of this Comment provides an overview of the FMLA and corresponding federal regulations, focusing on the purpose of the 2009 revisions and the policy concerns underlying the FMLA. Part II examines the ambiguous language of the FMLA notice provisions and the conflicting jurisprudence in cases of unforeseeable leave, examining each element of notice—timing, content, and form. Part III analyzes the implications of the current state of the law on employers and employees. Part IV argues that Congress should amend the Code of Federal Regulations to include a two-step notice process in cases of unforeseeable leave to clarify the law and provide employers and employees with more consistency and security.

Inconsistency with the Internal Consistency Test

Mackenzie Catherine Schot

Part I of this Comment provides an overview of the erratic history of state taxation under the dormant Commerce Clause. Part II explains the divided Supreme Court’s most recent analysis in Comptroller of the Treasury of Maryland v. Wynne. Finally, Part III argues that the Court correctly chose the internal consistency test as the leading standard but should have presented its final decision more clearly.

When a Bright-Line Rule Crosses a Gray Area: The Problem with IQ in Louisiana’s First-Degree Rape Statute

By Jo Neuman, Issue Editor 

Introduction

Louisiana defines “rape” as an act of sexual intercourse without the lawful consent of the other person.[1] Penalties increase based on specific criteria,[2] and a conviction for first-degree rape carries a life sentence without benefit of parole.[3] The statute also deems certain persons incapable of consenting, such as children under the age of 13.[4]

 

In 1997, the legislature added mentally infirm victims to those deemed unable to consent[5] and defined “mental infirmity” as “a person with an intelligence quotient of seventy or lower.”[6] Mentally disabled individuals are estimated to be four to ten times more likely to be victimized sexually than members of the general population.[7] Legislators likely considered this fact when they added protection for such victims to the first-degree rape statute.

 

The constitutionality of this definition was recently challenged, and the Louisiana Supreme Court remanded the case to the district court for consideration of the defendant’s claim that the statute is unconstitutional because it establishes a threshold intelligence quotient (“IQ”) score as the sole determinant of mental infirmity.[8] The problem is not trying to protect this class of particularly vulnerable individuals, but rather the specific definition of mental infirmity that appears to criminalize all sexual activity with a person whose IQ is 70 or lower.[9] In light of medical science and recent jurisprudence, the provision is probably unconstitutional. Regardless of the result in the pending case, the Louisiana legislature should revise the definition to align with medical science and recent jurisprudence.[10]

 

Medical Science and IQ Uncertainty

Medical science recognizes that intellectual disability involves more than an IQ score. To be intellectually disabled, the American Psychiatric Association says a person must have deficits in both general intellectual ability and adaptive functioning in one or more areas of daily life with onset occurring during the developmental period.[11] Two people with the same IQ may differ significantly in their abilities to function in society.[12]

 

Medical science also acknowledges that IQ scores are not exact and represent a range with a margin of error of five points.[13] Thus, the range for an IQ score of 70 would be between 65 and 75.[14] Medical experts also note an IQ score should not be considered in isolation and that “clinical judgment is needed” to interpret the results of an IQ test.[15] Further, IQ scores “are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations . . . a person with an IQ score above 70 may have such severe adaptive behavior problems . . . that the person’s actual functioning is comparable to that of individuals with a lower IQ score.”[16] As a result, individuals with IQs above 70 could be less capable of consenting to sexual activity than persons with a lower IQ score,[17] yet the statute as written offers these individuals no protection.

 

Conversely, persons with IQs lower than 70 might be capable of consenting to sexual activity because of the level of their adaptive functioning, yet the plain language of the statute criminalizes such conduct. Advocates opine that intellectually disabled adults are “sexual beings”[18] and should not be categorically precluded from consenting to sexual activity.[19] They contend everyone “has the right to exercise choices regarding sexual expression and social relationships” and having an intellectual disability “regardless of severity, does not, in itself, justify loss of rights related to sexuality.”[20] In light of the inherent medical uncertainty in a given IQ score, evaluation of a person’s ability to consent should be individualized and not tied to a bright-line cutoff score.

 

Jurisprudential Findings on IQ

The United States Supreme Court has taken note of medical science in holding that IQ alone is insufficient to determine whether a defendant in a capital case is intellectually disabled.[21] The Florida Supreme Court had held defendants with IQs over 70 were categorically not intellectually disabled and therefore eligible for the death penalty.[22] The Court found it impermissible to rely on “an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence.”[23] The Court specifically referenced the definition from the DSM-5, which requires consideration of deficits in adaptive functioning in addition to sub-average intelligence.[24]

 

Even before the United States Supreme Court rendered its decision in Hall, the Louisiana Supreme Court declined to set a bright-line IQ cutoff score for evaluating whether a defendant was intellectually disabled for purposes of capital punishment.[25] The court considered medical science noting that a defendant must show “subaverage intellectual functioning existing concurrently with deficits in adaptive behavior.”[26] Further, the court acknowledged IQ scores are not exact and represent a range in which a person’s actual score falls.[27] In her concurrence, Justice Knoll stated that Louisiana does not apply a strict numerical cutoff to IQ scores when evaluating intellectual disability.[28] Despite this judicial recognition, the first-degree rape statute still employs a bright-line IQ cutoff score.[29]

 

Prior Legislative Recognition

The Louisiana legislature has not been silent on this issue. In 2003, it enacted a rule for determining when defendants in capital cases are intellectually disabled wherein it used a definition of  intellectual disability substantially similar to what is contained in the DSM-5 with no reference to an IQ cutoff score.[30] Additionally in 2011, the legislature explicitly declined to add an IQ cutoff score to proposed revisions to the sexual battery statutes.[31] Despite revising the first-degree rape statute several times, the legislature has not revised the definition of mental infirmity contained therein.

 

Conclusion

Determining intellectual disability is a gray area that does not lend itself to relying solely on a bright-line IQ cutoff score. Both the United States Supreme Court and the Louisiana Supreme Court have recognized IQ scores are imprecise, and relying on an IQ score without taking into account other factors considered by medical experts is improper.[32] Removing this bright line and allowing for the possibility that an intellectually disabled individual can consent will help ensure a defendant is not automatically facing a potential life sentence based solely on the other person’s IQ. This change would likewise afford greater protection to a victim with an IQ over 70 who is found unable to consent because of deficits in adaptive functioning. Furthermore, by eliminating IQ from the definition of mental infirmity, the legislature will align the first-degree rape statute with medical science and jurisprudential findings and ensure consistency in Louisiana’s criminal statutes.

[1] La. Rev. Stat. § 14:41 (2016).

[2] Compare Id. § 14:42, and § 14:42.1, with § 14:43 (sentences range from “not more than twenty-five years” to mandatory life imprisonment).

[3] Id. § 14:42(D).

[4] Id. § 14:42(A)(4).

[5] 1997 La. Acts 757.

[6] La. Rev. Stat. § 14:42(C)(2).

[7] Deborah W. Denno, Sexuality, Rape, and Mental Retardation, 1997 U. Ill. L. Rev. 315, 320; Joan Petersilia, Invisible Victims: Violence Against Persons with Developmental Disabilities, 27 Hum. Rts. 9, 9 (2000).

[8] State v. Mosley, No. 2016-1350, 2016 WL 7448268, at *1 (La. Nov. 29, 2016).

[9] La. Rev. Stat. § 14:42(C)(2).

[10] The legislature should also revise other provisions in this statute, including updating the definition of physical infirmity and removing the capital punishment provisions in light of the holding in Kennedy v. Louisiana, 554 U.S. 407 (2008), but discussion of those provisions is beyond the scope of this comment.

[11] Am. Psychiatric Ass’n, Diagnostic and Stat. Manual of Mental Disorders: DSM-5, 33 (5th ed. 2013). General intellectual ability is assessed based on IQ testing. Individuals are considered intellectually disabled if their IQ scores are approximately two standard deviations below the mean. On a typical IQ test, the mean is 100, and the standard of deviation is 15, resulting in a score of approximately 70. Id. at 37.

[12] Id. at 37.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Claire Azzopardi-Lane & Anne-Marie Callus, Constructing Sexual Identities: People with Intellectual Disability Talking About Sexuality, 43 Brit. J. Learning Disabilities 32, 35 (2014).

[19] Sexuality: Joint Position Statement of AAIDD and The Arc, Am. Ass’n of Intell. & Dev. Disabilities, http://aaidd.org/news-policy/policy/position-statements/sexuality [https://perma.cc/SGL3-TL38] (last visited Feb. 8, 2017). See also Alexander A. Boni-Saenz, Sexuality and Incapacity, 76 Ohio St. L.J. 1201, 1205 (2015) (“[T]he right to sexual expression should not be withheld due to cognitive impairment alone.”).

[20] Sexuality: Joint Position Statement of AAIDD and The Arc, supra note 19.

[21] Hall v. Florida, 134 S. Ct. 1986, 2001 (2014).

[22] Id. at 1994.

[23] Id. at 1995.

[24] Id. at 1994.

[25] State v. Dunn, 41 So. 3d. 454 (La. 2010).

[26] Id. at 461.

[27] Id. at 470.

[28] Id. at 475 n.1.

[29] La. Rev. Stat. § 14:42 (2016).

[30] La. Code. Crim. Proc. art. 905.5.1 (2016) (characterizing intellectual disability as “[d]eficits in intellectual functions . . . confirmed by both clinical assessment and individualized, standardized intelligence testing . . . [and d]eficits in adaptive functioning”).

[31] H.B. 86, 2011 Leg., Reg. Sess. (La. 2011) (as originally introduced, this bill defined “mental infirmity” as “a person who has an intelligence quotient of seventy or lower,” but amendments adopted before its enactment removed all references to IQ).

[32] Hall v. Florida, 134 S. Ct. 1986, 2001 (2014); Dunn, 41 So. 3d at 470.

Incentive-Based Greening: A Primer for Promoting Sustainable Design Policies for Localities

By Cameron Miller, Issue Editor

INTRODUCTION

Buildings are gluttonous consumers of natural resources: constructing buildings creates vast amounts of waste material and operating buildings contributes significantly to global pollution.[1] Most reports indicate that on a worldwide basis, nearly 40% of all primary energy[2] is used on buildings.[3] Particularly in the United States, buildings are responsible for approximately 62% of electricity consumption, over 36% of primary energy consumption, and 30% of greenhouse gas emissions.[4] Thus, it is critical that all actors involved in the development process—government officials, private developers, property owners, and the general public—understand what sustainable building and green policies are and why sustainability goals are so important in the development industry.

Sustainable, or “green,” building practices represent a critically important component of the broader environmental movement. Rather than tackle a full-scale review of the legal aspects surrounding the implementation of pro-sustainability development practices, this comment focuses on a subset of green building policy implementation: incentivizing green building practices at the local government level. The first sections provide a brief overview of what sustainable building practices are and why they are environmentally important. Next, the comment looks to how pro-sustainability policies are implemented; this section compares green building policies mandated by various levels of government, as well as green building standards promulgated by private groups. Finally, this comment presents a survey of policy measures that local governments can undertake to promote green building practices in their communities.

  GREEN BUILDING BASICS

What is Green Building?

“Green building” can be defined as the practice of increasing the efficiency with which buildings and their sites use energy, water, and materials and reducing the (potentially negative) impacts buildings have on human health and the environment through better siting, design, construction, operation, maintenance, and removal.[5] Sustainable buildings seek to limit resource consumption and environmental impacts over the life of buildings—from initial resource extraction to waste disposal—while simultaneously providing building occupants an optimized environment.[6] To accomplish this, sustainable buildings have many design features that are either newly developed technology or otherwise not standard in most construction projects.[7]

Why Build Green?

Building construction, operation, maintenance, repair, and demolition have an enormous impact on the environment.[8] Buildings are a primary factor contributing to greenhouse gas emissions, water and air pollution, excessive energy consumption, solid waste generation, and other critical problems.[9] In the United States alone, there are over 300 billion square feet of building space, which includes over 111 million housing units and almost 5 million commercial buildings.[10] Buildings also account for staggering quantities of storm water runoff, and the indoor air quality of buildings is often substantially more polluted than outdoor air.[11]

With the substantial external effects of buildings in mind, proponents of green building strategies cite a variety of benefits associated with constructing sustainable buildings. Chief among these is a considerable decrease in energy costs over the life of the building, typically achieved through the lower cost of utilities.[12] Proponents of green buildings often point to these cost reductions over the life of green buildings as a justification of building green in the first place.[13] Pro-sustainable building advocates also point to increased indoor air quality and improved overall comfort within green buildings, which could lead to increased productivity in such buildings.[14] Taken together, these positive aspects of green buildings on the micro level have significant environmental effects at the macro level in terms of reducing carbon emissions from buildings, decreasing buildings’ contributions to urban heat islands, and reducing the materials expended in constructing and maintaining buildings.

Governmental v. Private Action?

In the United States, the federal government has not adopted any sweeping mandates for sustainable building. Some federal agencies have, however, established green building mandates for any construction that takes place within its respective department or agency.[15] In this absence of federal regulation, many states have passed legislation either mandating or encouraging entities to incorporate Leadership in Energy and Environmental Design (“LEED”) standards in new construction.[16] While state mandates typically only apply to public projects, many states have passed regulations seeking to incentivize private developers to build green.[17]

By far the most common practice, however, is for cities and local governments to implement regulations relating to sustainable building practices.[18] Unlike state legislation regarding green building policies, some localities have actually mandated sustainable building practices in the private sector, as well as the public sector.[19] Still, the most common practice is for local governments to promote green building practices in the private sector through legislation implementing incentives for sustainable building.[20] Promoting these practices is usually accomplished by tying the receipt of any incentives to developers and builders meeting certain levels of certification under a privately promulgated green building rating system, generally the LEED rating system of the United States Green Building Council (“USGBC”) discussed below.[21]

Currently, there is no universal regulatory system to promote and standardize sustainable building practices in either the public or private sector.[22] Instead, a handful of green building standards have served as guidelines for green building both for governmental and private actors.[23] The most prominent of these such guidelines is the USGBC’s LEED Green Building Rating System, which was created to “bring uniformity to the American green building movement by establishing a common standard of measurement for green building elements, promoting integrated, whole-building design practices, recognizing environmental leadership in the building industry, stimulating green competition, raising consumer awareness of green building benefits, and transforming the building market.”[24]

The LEED Rating System operates as a checklist, with projects seeking certification under the program incorporating various green building components into their designs in an effort to receive credits towards LEED certification.[25] For projects seeking LEED certification, points are awarded in seven categories of human and environmental health, as well as one regional priority category that varies by state or locality.[26] Within each of these categories, there are a given number of “credits.”[27] A certain number of points are available within each credit; thus, it is up to the developer to determine what mix of credits—and the number of points under each credit—he or she wants to satisfy to add up to a certain number of points required for a given level of certification.[28] There are currently four levels of LEED certification: Certified, Silver, Gold, and Platinum.[29] Each successive level of higher certification is achieved by scoring more points on LEED’s rating checklist.

INCENTIVIZING GREEN BUILDING

Incentive Strategies for Promoting Sustainable Development

This section reviews five programs commonly used by municipalities to promote green building practices in their private development sectors. The strategies outlined here are green building tax incentives, density bonuses and green TDRs, expedited permitting for green projects, pro-sustainability grant programs, and green design assistance programs. These policies and programs are not an exhaustive list; rather, they represent some of the most frequently adopted strategies for incentivizing green development. Other viable strategies certainly exist, and it is critical that a community hoping to stimulate greater use of green building practices tailor any pro-sustainable building program to the specific objectives and needs of that community.

  1. Tax Policies and Incentives

Tax abatements and incentives are often the most flexible programs because states and municipalities have the ability to approve a multitude of sustainable performance standards and allocate those abatements or incentives to any taxing jurisdiction.[30] It is critical to note that developers and property owners have different priorities depending on whether they are small- or large-scale developers, short- or long-term owners or investors, developers looking to maintain equity investments in multiple properties, or corporate or residential building tenants.[31] Given the diversity of these parties and their differing interests and needs, tax incentives should be used to entice each group.[32]

While the additional cost of designing and constructing sustainable buildings are borne by the developer up front, the benefits gained from reduced energy costs accrue over the life of the building.[33] As such, a short-term investor or developer may never obtain any tangible benefits from building a green building, thus reducing the incentive to build green. Additionally, building owners who lease their properties may never realize these utilities savings and might prefer to spread those benefits over multiple years.[34] Transferable tax credits can encourage developers to build green, and tax abatements can be used to help defray the additional expenses often incurred by a sustainable design.[35]

  1. Bonus Density and TDRs

Some jurisdictions have implemented floor/area ratio (“FAR”) bonuses, height bonuses, reduced landscaping requirements, and counting green roof space as landscaping and open space in return for including sustainable design components or achieving certain green building ratings.[36] Other jurisdictions sanction transfers of development rights (“TDRs”), whereby property owners sever the ability to develop their typically more rural property and sell those rights to developers seeking to increase densities on prospective projects in more urban locales. Programs like this have the benefit of protecting rural lands from developments by placing conservation easements on rural properties that have transferred their development rights, as well as promoting growth in urban centers. When municipalities have capacity shortfalls, these bonus density programs can be particularly enticing to both developers and building owners. These types of programs also help alleviate the timing problem highlighted above regarding who in the development and occupancy process ultimately obtains the benefits of green building incentives.[37]

Bonus density and TDR programs help developers and building owners realize increased profits by allowing developers to increase floor space on prospective projects, which can enhance a project’s overall viability.[38] It is important, however, that this incentive remain exclusive. That is, as green building becomes more common, more prospective projects might attempt to utilize this incentive.[39] Thus, it is critical that municipalities maintain comprehensive sustainability metrics as prerequisites for obtaining these incentives and reexamine the stringency of those requirements as green building develops.[40]

  1. Expedited Review and Permitting

Streamlining the permitting and approval process for building, plan, and site permits can save green developers considerable time and money.[41] This strategy can be difficult to implement, as it typically involves reorganization of a community’s planning staff. However, over time, it can lead to substantial cost savings, both for the municipality, as well as for developers and architects.[42] Thus, one of the major benefits of expedited review and permitting process incentives is that once the structural changes in planning departments take place, these programs require little to no additional financial investment—they simply require a shift in permitting priority.[43]

Expediting the permitting and review processes affords a municipality the ability to increase tax revenues while also providing the development community with a valuable incentive.[44] However, to successfully implement these programs, local planning staffs must include planners or inspectors with particular expertise in sustainable design and building; namely, it is critical that staffs include personnel who are well versed in LEED or any other green rating system the community uses.[45] As cities improve in this area, they will also experience increased revenues, as projects that move more quickly to completion provide increased tax revenues earlier for the community.[46]

  1. Grant Programs and Fee Subsidization

Municipalities should also consider direct grant programs to help offset some of the additional costs sustainable design and building projects present.[47] These types of incentives are generally awarded as a single monetary contribution. They also offer municipalities the opportunity and flexibility to promote the use of specific features like photovoltaic systems, HVAC systems, or water systems in green projects that are of particular import to that community. Additionally, should the community choose to promote LEED certification, these types of grants can be utilized by municipalities to defray those costs, as certification with the USGBC can be quite expensive.[48]

  1. Technical Design Assistance Programs

Even as demand for sustainable design and building increases, there are still questions regarding what sustainable design and building techniques are most effective.[49] Communities must provide technical expertise to those looking to implement sustainable design components in future developments. As the development community continues to embrace the growing trend of green building, it is important for local governments to keep up by providing quality services from training planners and building inspectors. By keeping accredited officials on planning staffs, communities have the ability to develop better master plans and provide better oversight of proposed green projects. By promoting a culture of sustainability, local planning commissions can also further educate the community on the benefits that sustainable design and building provide.[50]

CONCLUSION

The impact that buildings have on people cannot be overstated. We spend the majority of our time inside of them, they provide us shelter, and they represent the idea of home for so many people throughout the world. However, the impact that our buildings have on the earth is also of great magnitude. Thus, it is critical that humans create ways to build responsibly to protect our future on this planet, and incorporating sustainable design features in our environment represents just one small part in the broader environmentalism movement. While this comment reviews but a sliver of how that goal might be reached, it hopefully serves as a starting point for how local communities across the country might endeavor to solve this global issue.

 

 

[1] Carl J. Circo, Using Mandates and Incentives to Promote Sustainable Construction and Green Building Projects in the Private Sector: A Call for More State Land Use Policy Initiatives, 112 Penn. St. L. Rev. 731, 733 (2008).

[2] Primary energy is an “energy found in nature that has not been subjected to any conversion or transformation process. It is energy contained in raw fuels as well as other forms of energy received as input to a system.” Primary Energy, Real Return Environment, http://www.realreturnenvironment.com/index.php?option=com_ content&view= article&id=49&Itemid=110 [https://perma.cc/5C94-BDQF] (last visited Feb. 21, 2017).

[3] Id.

[4] Stephen T. Del Percio, Comment, The Skyscraper, Green Design, & the LEED Green Building Rating System: The Creation of Uniform Sustainable Standards for the 21st Century or the Perpetuation of an Architectural Fiction?, 28 Environs Envtl. L. & Pol’y J. 117, 125 (2004).

[5] White Paper on Sustainability: A Report on the Green Building Movement, Bldg. Design & Constr. Nov. 2013, at 4, https://www.usgbc.org/Docs/Resources/BDCWhitePaperR2.pdf [https://perma.cc/K9F3-E39S] [hereinafter White Paper] (quoting Office of Fed. Envtl. Exec., The Federal Commitment to Green Building: Experiences and Expectations (2013)).

[6] Benjamin S. Kingsley, Note, Making It Easy To Be Green: Using Impact Fees To Encourage Green Building, 83 N.Y.U. L. Rev. 532, 534 (2008).

[7] Id.

[8] Trip Pollard, Building Greener Communities: Smarter Growth and Green Building, 27 Va. Envtl. L.J. 125, 126 (2009).

[9] Id. at 125.

[10] Id. at 126.

[11] Circo, supra note 1, at 733.

[12] Id. at 737.

[13] Id.

[14] Id.

[15] A. Paige Reber, Note, Taking the “LEED”: Determining the Appropriate Amount of Government Regulation in Green Building Projects, 98 Ky. L.J. 573, 577 (2009).

[16] Id.

[17] Id. at 577–78.

[18] Id. at 579.

[19] Id.

[20] Id.

[21] Sarah B. Schindler, Following Industry’s LEED®: Municipal Adoption of Private Green Building Standards, 62 Fla. L. Rev. 285, 291 (2010).

[22] Reber, supra note 15, at 575.

[23] Id.

[24] Id. at 575–76 (citing Del Percio, supra note 4, at 121).

[25] For an in-depth discussion on how the LEED certification process operates see About LEED, U.S. Green Building Council (Jul. 1, 2015), http://www.usgbc.org/articles/about-leed [https://perma.cc/NV6N-N2F5].

[26] See Checklist: LEED v4 for Building Design and Construction, U.S. Green Building Council (Apr. 5, 2016), http://www.usgbc.org/resources/leed-v4-building-design-and-construction-checklist [https://perma.cc/R29A-ADET]

[27] Id.

[28] Id.

[29] See About LEED, supra note 25.

[30] Am. Inst. of Architects, Local Leaders in Sustainability: State and Local Green Building Incentives 7 (2011), http://www.aia.org/aiaucmp/groups/aia/documents/pdf/aias076936.pdf [https://perma.cc/427Y-9V6N].

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id. at 8.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id. at 9.

[42] Id. at 10.

[43] Green Building Incentive Strategies, U.S. Green Building Council, http://www.usgbc.org/Docs/Archive/General/Docs6248.pdf [https://perma.cc/7W68-LAJB] (last visited Feb. 7, 2017).

[44] Id.

[45] Am. Inst. of Architects, supra note 30, at 10.

[46] Id.

[47] Id. at 12.

[48] Id.

[49] Id. at 14.

[50] Id.

Pork Barrel Legislating: The Separation of Powers Restoration Act

By Ian Simrod, Senior Associate

Again, Congress has proposed a piece of legislation titled the “Separation of Powers Restoration Act” (“SOPRA”), which is Title II of the larger Regulatory Accountability Act.[1] SOPRA sets out to repeal the landmark Supreme Court decision Chevron U.S.A. v. NRDC by amending Section 706 of the Administrative Procedure Act.[2] In Chevron, the Court held that reviewing courts should defer to agencies’ interpretations of an ambiguous statute.[3] The main provision of SOPRA details that a reviewing court shall “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.”[4] When a court hears a case de novo, it decides the issues without a reference to assumptions and legal conclusions made by any previous court that heard the case.[5]

The Clean Air Act tasked the Environmental Protection Agency (“EPA”) with regulating “stationary sources.”[6] The issue before the Supreme Court in Chevron centered on how to interpret the term “stationary sources.”[7] Under the “bubble theory,” multiple smokestacks at one site were treated as one stationary source.[8] The opposing theory treated each smokestack as a separate stationary source, meaning that one single plant would have multiple stationary sources being regulated.[9] The energy industry wanted the EPA to utilize the bubble theory, as it would give the industry flexibility to compensate for high polluting smokestacks in its bubbles.[10] The EPA permitted the bubble approach insofar as allowing the states to define a stationary source as an entire plant for purposes of developing a state implementation plan to decrease air pollution.[11]

Justice Stevens, using the Chevron framework and writing for the Court, held that the EPA’s interpretation was reasonable.[12] When a court reviews an agency’s construction of a statute, it needs to address two questions.[13] Chevron first directs a court to determine whether Congress has spoken directly to the precise question at issue.[14] If the congressional intent is clear, there is no issue for the court to decide, and the congressional intent must be followed.[15] Essentially, the court determines whether the statute is ambiguous. If it is not ambiguous, the judicial analysis ends.[16] To determine if there is ambiguity, the Court states that the finder of law should use “traditional tools of statutory construction.”[17] If a court finds that there is ambiguity within the statute, the second step of the framework requires the court to determine whether the agency’s action under the statute is based on a permissible construction of the statute.[18] To determine what is permissible, the Court states, “The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.”[19] Broadly speaking, the first step of the framework asks whether the statute creates a zone of ambiguity, and the second step asks whether the agency’s interpretation is within this zone.[20]

Advocates for the repeal of Chevron believe its prescribed deference circumvents principles of separation of powers by giving the judiciary the option to avoid its role of reviewing the legality of various regulations and rules promulgated by administrative agencies and to avoid striking down arbitrary agency actions.[21] Furthermore, these advocates believe that judicial deference creates a lack of incentive for Congress to draft clear statutes.[22]

In contrast, supporters of Chevron believe agencies are more expert and more politically accountable than courts and are therefore better suited for the task of administrative statutory interpretation.[23] Chevron deference also helps reduce judicial overload and produce judicial efficiency.[24]

While Congress looks to remedy what it perceives as a problem, it has overlooked the judicial remedy that already exists. This remedy is the doctrine known as the “major question exception,” which was introduced in Food & Drug Administration v. Brown & Williamson Tobacco Corporation.[25] The doctrine essentially states that Chevron deference does not apply when major economic and political repercussions would result from statutory interpretation.[26]

In Brown & Williamson, the Food and Drug Administration (“FDA”) interpreted a statute giving it authority to regulate drugs—defined as “articles (other than food) intended to affect the structure or any function of the body”—as encompassing the authority to control nicotine as a drug through the regulation of tobacco products.[27] Justice O’Connor, writing for the Court, held that Congress did not authorize this assertion of authority over the regulation of tobacco.[28] She first noted that, with the FDA’s support, Congress had enacted six statutes regarding tobacco, premised on the view that the FDA lacked jurisdiction.[29] Justice O’Connor wrote, “Under these circumstances, it is clear that Congress’ tobacco-specific legislation has effectively ratified the FDA’s previous position that it lacks jurisdiction to regulate tobacco.”[30] She then stated that allowing the FDA to assert jurisdiction over a large part of the American economy would be a major transition.[31] Finally, she stated, “As in MCI,[32] we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”[33] The Court essentially stated that when addressing major questions of economic and political significance, it is not enough to say that Congress could step in to correct the issue; the burden, instead, should be on Congress to issue a clear statement.[34] Fifteen years after its introduction, the major question exception was addressed and confirmed in King v. Burwell.[35]

The underlying issue in King v. Burwell was whether an Internal Revenue Service (“IRS”) regulation that extended tax credits to federal exchanges, authorized by the Affordable Care Act (“ACA”), exceeded the agency’s statutory authority.[36] The ACA required each state to establish an “exchange” so that people could purchase health insurance coverage, and if the state refused to establish an exchange, the federal government would establish one.[37] The ACA also required people to obtain minimum essential coverage, unless a person fell within a low-income exemption, or else the person would have to pay a penalty.[38] To limit the number of people falling under the exemption, the ACA provided tax credits.[39] Critically, the language of the ACA pertaining to these tax credits only referred to “state-based” exchanges.[40] Although only the state-based exchanges were mentioned, the IRS created a regulation that made the tax credits available to those enrolled in the federal exchanges.[41]

The Court held that Congress did not delegate authority to the IRS to determine whether the tax credits should be available to those enrolled in both the state and federal exchanges.[42] The language of the statute unambiguously provides that Congress intended for the tax credits to be available through both exchanges.[43] The Court refused to apply the Chevron deference framework and officially confirmed the major question exception by stating that, when there are major consequences to the interpretation of statutory language, Chevron deference does not apply.[44] Although the major question exception became official in this case, there is still ambiguity concerning what specific consequences would qualify as “major” to be an exception.

Overall, the Supreme Court has found a balance and solution to the issues of Chevron deference with the major question exception, which allows for judicial efficiency while respecting the principles of separation of powers. Judicial efficiency will remain because courts can defer to agencies on more trivial and less far-reaching policies while tackling regulations that have major political significance and economic impact. This doctrine also remedies the lack of incentive for Congress to draft clear statutes concerning major regulations because courts are now empowered to scrutinize these regulations. SOPRA is pork barrel legislating, insofar as the legislation is wasteful, because the Supreme Court has already foreseen the issues with Chevron deference and provided a solution for the doctrine’s inconsistencies.

 

[1] Separation of Powers Restoration Act of 2017, H.R. 76, 115th Cong. (2017).

[2] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

[3] See id.

[4] H.R. 76.

[5] De Novo, LII: Wex Legal Dictionary, https://www.law.cornell.edu/wex/de_novo [https://perma.cc/HFD5-4HV6] (last visited Feb. 9, 2017).

[6] See Chevron, 467 U.S. 837.

[7] Id. at 842.

[8] Id.

[9] Id.

[10] See id.

[11] William Fox, Understanding Administrative Law 19 (6th ed. 2012).

[12] Chevron, 467 U.S. at 845.

[13] Id. at 842.

[14] Id.

[15] Id. at 842–43.

[16] See id. at 843.

[17] Id. at 843 n.9.

[18] Id. at 843.

[19] Id. at 843 n.11.

[20] See id. at 843.

[21] Jordan Rodriguez, Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2017, JDSupra (Feb. 2, 2017), http://www.jdsupra.com/legalnews/chevron-deference-and-the-proposed-93589/ [https://perma.cc/Q2XW-CCQN].

[22] Id.

[23] Id.

[24] Id.

[25] 529 U.S. 120 (2000).

[26] See King v. Burwell, 135 S. Ct. 2480 (2015).

[27] 529 U.S. 120, 126 (2000) (citing 21 U.S.C. § 321(g)(1)(C)).

[28] See id. at 161.

[29] Id. at 122.

[30] Id. at 156.

[31] See id. at 159–60.

[32] MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218 (1994).

[33] 529 U.S. at 160.

[34] See id.

[35] King v. Burwell, 135 S. Ct. 2480 (2015).

[36] See id.

[37] King v. Burwell, Oyez, https://www.oyez.org/cases/2014/14-114 [https://perma.cc/4NR5-A6DN] (last visited Feb. 9, 2017).

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] See King v. Burwell, 135 S. Ct. 2480 (2015).

[43] Id. at 2492.

[44] Id. at 2488–89.

Volume 78 Board Announced!

We are proud to announce and congratulate the Junior Associates who were selected to the Volume 78 Board of Editors. The Volume 77 Board received excellent candidates, and we thank everyone for applying. Serving on the Board of Editors of the Louisiana Law Review is a singular honor, and we wish the best of luck to the new Board! 

 

Editor-in-Chief

Carson Garand 

Managing Editor

Katie Herbert

Articles Editors

Colton Acosta

Sarah Nickel

 

Production Editor

Caroline Donze

Derby Willis

 

Executive Senior Editor

Kristin Oglesby

 

Senior Editors

Malerie Bulot

Molly Gunnels

Michael Seibert

Savannah Walker

Ben Wallace

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William Walsh