A FFIRMATIVE P UBLIC H EALTH L ITIGATION : W HY I T M ATTERS
THE PUBLIC HEALTH LAW CENTER 11/5/2020 2
11/5/2020 3
LEGAL TECHNICAL ASSISTANCE Legal Research Policy Development, Implementation, Defense Publications Trainings Direct Representation Lobby 11/5/2020 4
UPCOMING WEBINARS • Local Flavor Litigation: What’s the Scoop? – 11/12/20 11:00 am Central • Federal Tobacco Litigation: What’s the Latest? – 11/19/20 1:00 pm Central • Federal Update: E-Cigarettes and Flavors – 12/1/20 11:00 am Central 11/5/2020 5
AGENDA • Litigation as a Tool • Historical Context – Tobacco Litigation • The Current Role of Affirmative Litigation • Environmental Litigation • Public Health Law Center’s Litigation Tracker • Discussion/Q&A 11/5/2020 6
LITIGATION AS A TOOL 11/5/2020 7
LITIGATION AS A TOOL Legislative Executive Judicial 11/5/2020 8
LITIGATION AS A TOOL • Powerful tool, but use with caution • Tactic of last resort • Doesn’t replace grassroots organizing • Expensive and resource- intensive • Risky 11/5/2020 9
AGENDA • Litigation as a Tool • Historical Context – Tobacco Litigation • The Current Role of Affirmative Litigation • Environmental Litigation • Public Health Law Center’s Litigation Tracker • Discussion/Q&A 11/5/2020 10
HISTORICAL CONTEXT – TOBACCO LITIGATION Industry Public Interest/ Individuals Government 11/5/2020 11
HISTORICAL CONTEXT – TOBACCO LITIGATION Industry Public Interest/ Individuals Government 11/5/2020 12
HISTORICAL CONTEXT – TOBACCO LITIGATION Industry Public Interest/ Individuals Government 11/5/2020 13
HISTORICAL CONTEXT – TOBACCO LITIGATION Industry Public Interest/ Individuals Government 11/5/2020 14
HISTORICAL CONTEXT – TOBACCO LITIGATION Industry Government/ Public Interest/ Individuals 11/5/2020 15
HISTORICAL CONTEXT – TOBACCO LITIGATION Industry Public Interest/ Individuals Government 11/5/2020 16
AGENDA • Litigation as a Tool • Historical Context – Tobacco Litigation • The Current Role of Affirmative Litigation • Environmental Litigation • Public Health Law Center’s Litigation Tracker • Discussion/Q&A 11/5/2020 17
PUBLIC HEALTH LITIGATION THE GAME CHANGERS • American Academy of Pediatrics et al. (graphic warnings and premarket review) • AATCLC, ASH et al. (menthol) 11/6/2020 18
PUBLIC HEALTH LITIGATION THE GAME CHANGERS • American Academy of Pediatrics (AAP) et al. (Massachusetts) • FDA has a mandate in the Tobacco Control Act to issue graphic warning labels • FDA issued a rule in 2011, which was overturned • As of 2016, FDA hadn’t issued a new rule • AAP and other public health groups sued FDA • Court ordered FDA to issue a rule, which it did in March of 2020 (currently being litigated…) 11/6/2020 19
PUBLIC HEALTH LITIGATION THE GAME CHANGERS • American Academy of Pediatrics (AAP) et al. (Maryland) • The Tobacco Control Act requires “new tobacco products” (such as e-cigarettes) to receive affirmative marketing orders before being sold • FDA issued guidance in 2017 extending timeline and allowing products to remain on the market indefinitely pending review • AAP and other public health groups sued FDA to require review • Court ordered new premarket review deadlines (e.g., recent Sept. 9 th application deadline) 11/6/2020 20
PUBLIC HEALTH LITIGATION THE GAME CHANGERS • AATCLC and ASH (California Federal Court) • In 2009, FDA banned all characterizing flavors in cigarettes, but exempted menthol • Congress required TPSAC to study of the impacts of menthol on public health – report issued in 2011 • Public health groups filed a citizen petition asking it to remove menthol from the market • FDA concluded that menthol cigarettes are harmful to public health and issued two notices of proposed rulemaking • FDA has yet to act to remove menthol from the market • AATCLC and ASH sued FDA to force action 11/6/2020 21
ENVIRONMENTAL LITIGATION LESSONS LEARNED • Sierra Club v. Morton • MA v. EPA • NRDC v. Chevron • Standing Rock Sioux Tribe v. U.S. Army Corps 11/6/2020 22
ENVIRONMENTAL LITIGATION LESSONS LEARNED • Sierra Club v. Morton (1972) • Sierra Club sued U.S. Dept. of the Interior over the development of a Disney ski resort in Sequoia National Park • The U.S. Supreme Court determined that Sierra Club did not show that it would be injured by Disney’s plans to build resort • The upshot: though Sierra Club lost the case, it established important legal precedents and slowed the development of the project (which was ultimately never completed) 11/6/2020 23
ENVIRONMENTAL LITIGATION LESSONS LEARNED • Chevron v. NRDC (1984) • Natural Resource Defense Council sued EPA over an interpretation of the Clean Air Act preconstruction permit rule • The U.S. Supreme Court determined that EPA’s interpretation was reasonable • The upshot: this is one of the most important decisions in Administrative Law, establishing “Chevron deference” to agency interpretations of laws 11/6/2020 24
ENVIRONMENTAL LITIGATION LESSONS LEARNED • Massachusetts v. EPA (2007) • Massachusetts and several other states petitioned the EPA to regulate emissions of greenhouse gases from motor vehicles • EPA denied the petition, saying that the Clean Air Act does not authorize it to regulate greenhouse gases • MA appealed the denial of the petition • U.S. Supreme Court ruled that MA had standing as a state to sue EPA over the potential damage from global warming, and that EPA must regulate greenhouse gases • The upshot: incredibly important procedural and substantive win 11/6/2020 25
ENVIRONMENTAL LITIGATION LESSONS LEARNED • Standing Rock Sioux Tribe et al. v. U.S. Army Corps of Engineers • Standing Rock Sioux Tribe sued the U.S. Army Corps of Engineers over the permitting of the Dakota Access oil pipeline underneath Lake Oahe upriver of the Standing Rock Sioux Nation • In a series of rulings, the court has found that the Tribe was not properly consulted, that the environmental review was insufficient, and that the pipeline needs to be shut down pending proper environmental review • The upshot: legal and direct action go hand-in-hand; lawsuits are critical for moving forward environmental justice and public health 11/6/2020 26
LITIGATION TRACKER 11/6/2020 27
CONTACT US 651.290.7506 publichealthlawcenter@mitchellhamline.edu www.publichealthlawcenter.org @phealthlawctr facebook.com/publichealthlawcenter 11/6/2020 28
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