A FFIRMATIVE P UBLIC H EALTH L ITIGATION : W HY I T M ATTERS THE - - PowerPoint PPT Presentation

AFFIRMATIVE PUBLIC HEALTH LITIGATION: WHY IT MATTERS

THE PUBLIC HEALTH LAW CENTER

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LEGAL TECHNICAL ASSISTANCE

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Legal Research Policy Development, Implementation, Defense Publications Trainings Direct Representation Lobby

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UPCOMING WEBINARS

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• 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

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AGENDA

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• 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

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LITIGATION AS A TOOL

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LITIGATION AS A TOOL

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Legislative Judicial Executive

LITIGATION AS A TOOL

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• Powerful tool, but use with

caution

• Tactic of last resort
• Doesn’t replace grassroots
• rganizing
• Expensive and resource-

intensive

• Risky

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AGENDA

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• 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

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HISTORICAL CONTEXT – TOBACCO LITIGATION

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Industry Government Public Interest/ Individuals

HISTORICAL CONTEXT – TOBACCO LITIGATION

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Industry Government Public Interest/ Individuals

HISTORICAL CONTEXT – TOBACCO LITIGATION

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Public Interest/ Individuals Industry Government

HISTORICAL CONTEXT – TOBACCO LITIGATION

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Public Interest/ Individuals Industry Government

HISTORICAL CONTEXT – TOBACCO LITIGATION

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Government/ Public Interest/ Individuals

Industry

HISTORICAL CONTEXT – TOBACCO LITIGATION

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Public Interest/ Individuals Industry Government

AGENDA

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• 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

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PUBLIC HEALTH LITIGATION THE GAME CHANGERS

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• American Academy of Pediatrics et al. (graphic warnings and

premarket review)

• AATCLC, ASH et al. (menthol)

PUBLIC HEALTH LITIGATION THE GAME CHANGERS

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• 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…)

PUBLIC HEALTH LITIGATION THE GAME CHANGERS

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• 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.

9th application deadline)

PUBLIC HEALTH LITIGATION THE GAME CHANGERS

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• 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

ENVIRONMENTAL LITIGATION LESSONS LEARNED

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• Sierra Club v. Morton
• MA v. EPA
• NRDC v. Chevron
• Standing Rock Sioux Tribe v. U.S. Army Corps

ENVIRONMENTAL LITIGATION LESSONS LEARNED

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• Sierra Club v. Morton (1972)
• Sierra Club sued U.S. Dept. of the Interior over the development
• f 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)

ENVIRONMENTAL LITIGATION LESSONS LEARNED

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• 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

ENVIRONMENTAL LITIGATION LESSONS LEARNED

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• 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
• ver the potential damage from global warming, and that EPA must

regulate greenhouse gases

• The upshot: incredibly important procedural and substantive win

ENVIRONMENTAL LITIGATION LESSONS LEARNED

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• 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
• ver 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

LITIGATION TRACKER

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CONTACT US

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651.290.7506 publichealthlawcenter@mitchellhamline.edu www.publichealthlawcenter.org @phealthlawctr facebook.com/publichealthlawcenter

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