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This week Supreme Court Justice Anthony Kennedy announced his retirement from the Supreme Court.  Justice Kennedy, a conservative, was appointed by President Ronald Reagan in 1987.  Although conservative, Kennedy’s upbringing in California is credited for his strong libertarian streak, often causing consternation to his court colleagues and petitioners alike. Kennedy often acted as the swing vote on substantial cases, and his legacy will be debated for years.  Others will no doubt write on the effect that his retirement, and the effect Trump’s appointment will have on major issues such as the right to abortion and same sex marriage. This blog is concerned with the possible effect of his retirement on environmental regulations and the role of the Supreme Court in interpreting them.

On April 30, 2018 in Lamps Plus Inc. v. Varela, the U.S. Supreme Court granted a writ of certiorari in a class arbitration case coming out of the Ninth Circuit.  The issue in Varela is whether the Federal Arbitration Act (“FAA”) precludes an interpretation of an arbitration agreement that may authorize class arbitration based solely on general language commonly used in arbitration agreements.  The Ninth Circuit held that even though the arbitration clause did not mention “class arbitration”, mutual assent to class arbitration could be inferred from the language that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings” and a description of the substantive arbitral claims.  This issue is important to consumers nationwide because if the U.S. Supreme Court reverses the Ninth Circuit and disallows class arbitration in Varela, consumers subject to many other arbitration clauses from which class arbitration may be more readily inferred than the one in Varela could be precluded from seeking class arbitration and leveling the playing field against companies committing rampant consumer fraud.

Judge Arnold New of the Philadelphia Court of Common Pleas recently held that more than 100 pelvic mesh lawsuits filed against Ethicon, a Johnson & Johnson subsidiary, could remain here in Philadelphia County under an analysis for specific personal jurisdiction post Bristol Myers Squibb.

Recently obtained documents from the Environmental Protection Agency (EPA) by the New York Times reveal that the EPA is drastically reducing the ways that it monitors and assesses potential health and safety risks related to the use of scores of chemicals, especially those most dangerous. Perchloroethylene, as well as multiple other known human carcinogens* that are used in consumer products and come in contact with workers in various industries, will now be less monitored and assessed for safety risks as this document shows.  The change in procedure, a boon to the chemical industry, came as a result of intense lobbying from industry groups like the American Chemistry Council.  

On Monday, in Murphy v. National Collegiate Athletic Association, the United States Supreme Court struck down a federal law that effectively banned sports betting in most states. The Professional and Amateur Sports Protection Act, passed in 1992, prohibited states from authorizing sports gambling. Senator Bill Bradley (D) of New Jersey, a former college and professional basketball star, was one of the sponsors of the bill. The rationale for the law was the purported need to safeguard the integrity of sports. In a 6-3 decision (Justice Alito wrote the majority opinion; Justice Breyer agreed with much of it; Justices Ginsburg and Sotomayor dissented), the Court ruled that the law violated the Tenth Amendment of the U.S. Constitution, which states that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. In other words, the Court found that the law violated state sovereignty and opened the door for individual states to pass statutes that would legalize gambling within their borders.