Supreme Court

The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Virginia Uranium v. Warren arguing that Virginia’s ban on uranium mining isn’t preempted by the Atomic Energy Act (AEA).

Virginia has the largest known uranium deposit in the United States. Since its discovery in the 1980s the Virginia legislature has banned uranium mining. Unsurprisingly the land owner, Virginia Uranium, wants to mine. It sued the state arguing the ban is preempted by federal law.

The three themes that dominated the third day of Judge Kavanaugh’s confirmation hearings were the same three topics discussed at length the day before:  executive power, abortion, and gun rights. Executive power received the most attention.

Making headlines were Senator Booker’s release of “committee confidential” Kavanagh emails discussing abortion and racial-profiling before they were cleared for release to the public, Judge Kavanaugh’s refusal to say whether he thinks Roe v. Wade was decided correctly, and his refusal to condemn President Trump’s attacks on the judiciary.  

Issues related to state and local governments received a little attention, including judicial deference to federal agencies, which was discussed a number of times the day before.

Herrera v. Wyoming is a case of dueling Supreme Court precedent.

Clayvin Herrera, a member of the Crow tribe, shot an elk in Big Horn National Forest in Wyoming. He was charged with hunting without a license during a closed season. Herrera claims that an 1868 treaty giving the Crow the right to hunt on the “unoccupied lands of the United States” allowed him to hunt on this land.

In Herrera v. Wyoming the Supreme Court will decide whether Wyoming's admission to the Union or the establishment of the Big Horn National Forest abrogated the Crow’s treaty right to hunt in Big Horn National Forest.

The Supreme Court has long resolved whether and when state law claims against drug manufacturers are preempted by federal law. The Third Circuit ruling in Merck Sharp & Dohme Corp. v. Albrecht is very favorable to state-law claims and likely will be modified, if not reversed, by the Supreme Court.

The Food and Drug Administration’s (FDA) approval of a drug warning label does not necessarily insulate drug manufacturers from state-law failure-to-warn claims. In Wyeth v. Levine (2009), the Supreme Court held that state failure-to-warn claims are preempted when there is “clear evidence” the FDA would not have approved the warning a plaintiff claims was necessary. In Merck Sharp & Dohme Corp. v. Albrecht, Merck claims there was such “undisputed” evidence in this case but the Third Circuit improperly allowed the case go to a jury for “conjecture as to why the FDA rejected the proposed warning.”

In Dawson v. Steager the Supreme Court will decide whether states may give some retired state and local government employees a bigger tax break on retirement benefits than retired federal employees.

West Virginia taxes the government-provided retirement income of most local, state, and federal employees. While retired federal employees and most state and local government employees may exempt up to $2,000 of retirement benefits from their taxable income, certain state and local police officers, sheriffs, and firefighters can exempt all of their benefits. This group comprises about two percent of all state government retirees.

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