The U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hear oral arguments in the case January 9.

The Bureau of Alcohol, Tobacco, Firearms & Explosives — ATF — had asked dealers near the Mexican border to provide information on sales of “two or more semi-automatic rifles at one time or during five consecutive business days,” according to court documents. A district court judge upheld the agency’s decision to make the demand.

The foundation, the firearms industry’s trade association, appealed the ruling, as did some gun dealers. The group has generated considerable attention in recent days because it is based in the same town where the Sandy Hook Elementary School shooting took place.

Lawyers for the foundation  say ATF exceeded its authority under the Gun Control Act in making the request of 8,707 gun dealers in Arizona, New Mexico, California and Texas.

“There is no rational law enforcement connection between the problem ATF sought to address – illegal firearms trafficking from the United States to Mexico – and merely conducting a lawful retail firearms business from premises located in one of the border states,” the foundation’s brief says.

The foundation’s lawyers also note that much-criticized ATF’s “Fast and Furious” program involved the agency allowing gun sales to suspected smugglers in an attempt to trace the purchased weapons back to Mexican drug cartels.

Government lawyers say the statute’s aim is to enable the “tracing of firearms recovered during a law enforcement investigation in order to identify potential violations of federal firearms laws.”

The letters were sent after the government determined “ATF’s efforts to investigate and combat arms trafficking across and along the southwest border were hindered by the lack of data on multiple sales of the semiautomatic rifles increasingly used by Mexican drug cartels,” the government maintains.

The case is National Shooting Sports Foundation v. Jones, 12-5009.

Here’s a summary of Roberts’ exchange with government lawyer Malcolm Stewart from a story Greenwire colleague John McArdle and I wrote:

Roberts said the government should have told the court that the final rule was “imminent,” a key piece of information he said was missing in the 875 pages of briefing in the case.

But most pertinently to those who track rulemaking procedures, Roberts seemed to have assumed the length of time it would take to finalize the rule would be much longer.

EPA submitted the rule to the White House’s Office of Information and Regulatory Affairs on Nov. 8. It was finalized 22 days later.

(snip)

“Is it your experience that proposed EPA rules become final within a couple of months particularly?” Roberts asked Stewart yesterday.

The government lawyer conceded that the stormwater runoff rule “happened more quickly than it usually does” but insisted it was intended to make it easier for the court to decide the case.

“Obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument,” Stewart said. “But it would have been even worse, I think, from the standpoint of the parties’ and the court’s decisionmaking processes if the rule had been issued a week or two after the court heard oral argument.”

Read the full story here.

• A round-up of the environment-related cases that are scheduled for argument (Greenwire).
• A report from Arkansas on Arkansas Game & Fish Commission v. U.S., the takings/property rights case to be argued Oct. 3 (Greenwire).
• A preview of Kiobel v. Royal Dutch Petroleum, the human rights case that will be argued Monday (California Lawyer).
• Another preview of Kiobel, this time focusing on the link between international human rights law and environmental law (Greenwire).

The aim of the filmmakers appeared to be to show that Pruitt-Igoe was not a failure due to design flaws or some kind of inherent problem with public housing in general, but rather that it was a victim of poor policy-making, the economic decline of the city, and — the elephant in the room — racial discrimination (a large number of tenants being African-Americans who were moved from slum areas that were redeveloped). Nothing much to complain about there, apart from the way the movie really did not tackle the race issue head-on. In particular, while focusing on the economic problems in St. Louis and the rise of the suburbs, it shied away from analyzing  how much those changes were related to”white flight” and how court decisions played a major role in that phenomenon (in the aftermath of Brown v. Board of Education, the Supreme Court’s 1954 school desegregation ruling). For example, a court ordered desegregation of public housing in St. Louis in 1956, apparently, but no mention was made of that in the movie. There was also no reference to the fact that, originally, Pruitt-Igoe was intended for African-Americans and whites (albeit segregated, according to a Wikipedia entry that, I hasten to add, does have footnotes), while by the end it seemed to be almost exclusively African-American. Surely that is a relevant issue to examine when looking at why the project failed so spectacularly? The film did include some clips of white suburbanites exhibiting racial bias in explaining why they didn’t want African-Americans moving in, but that doesn’t directly touch upon the reasoning behind why African-Americans were concentrated (and, it would appear, neglected) at Pruitt-Igoe.

About a decade ago, I covered a lengthy trial in Baltimore about allegations of racial discrimination in the way housing projects were planned in the city. In that case, Thompson v. HUD, it seemed like everyone who had ever been in a position of authority with any influence over housing in Baltimore was on trial (by coincidence, the parties agreed to a settlement just last week). There was little doubt that the motivation behind building large-scale high-rise public housing developments in the early days was not to end segregation but to perpetuate it. That experience in a Baltimore courtroom obviously informed my response to The Pruitt-Igoe Myth. So, while I think it was a moving and worthy effort, I feel the filmmakers downplayed the race factor and really needed a civil rights lawyer or law professor on camera to explain the legal background.  I find it odd that they didn’t, as it would not have conflicted at all with the story they were trying to tell.

We also remind the parties that our Handbook of Practice and Internal Procedures states that “parties are strongly urged to limit the use of acronyms” and “should avoid using acronyms that are not widely known.” Brief-writing, no less than “written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble.” George Orwell, “Politics and the English Language,” 13 Horizon 76 (1946). Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not, and littering their briefs with references to “SNF,” “HLW,” “NWF,” “NWPA,” and “BRC” – shorthand for “spent nuclear fuel,” “highlevel radioactive waste,” the “Nuclear Waste Fund,” the “Nuclear Waste Policy Act,” and the “Blue Ribbon Commission.”

It’s advice that lawyers — and journalists — should take to heart.

Oil contamination in Ecuador. Photo by Lawrence Hurley

Today it was the turn of the U.S. Court of Appeals for the District of Columbia Circuit to host the traveling roadshow known as Chevron Corp.’s fight to avoid paying up to $18 billion dollars for environmental damage in Ecuador.

The case has famously gone on for almost two decades now. Last year, a judge in Ecuador ruled that Chevron was liable for up to $18 billion for contamination caused by Texaco Petroleum Corp. Chevron acquired Texaco in 2001 (see my 2011 Greenwire series on the litigation for the full background). Even before that judgment came down, Chevron made it clear that it thought the claims against it were fraudulent and to that end commenced a federal racketeering case against the plaintiffs and their American lawyers. The oil giant’s attorneys at Gibson, Dunn & Crutcher and their adversaries at Patton Boggs have been in and out of courts all over the country fighting over discovery in both the racketeering case and other actions both sides have brought in relation to the litigation in Ecuador.

That’s what bought Theodore Boutrous of Gibson Dunn and James Tyrrell of Patton Boggs before a three-judge panel of the D.C. Circuit today, a development that prompted Chief Judge David Sentelle to remark that the case “has been argued in more courts than any other.”

The argument provided an insight into the frosty relations between the parties in what has become notoriously fractious litigation. Sentelle was keen to steer clear of the colorful rhetoric both sides have been known to use. “We have heard the vitriol that both sides want to spill on each other,” he noted at one point.

Even more revealing, in the hall outside just after the argument, Tyrrell was talking to me when Boutrous walked past. Boutrous greeted me but didn’t say a word to Tyrrell, who remarked that it’s the only case he’s ever worked on in which the attorneys don’t speak to each other.

As for the meat of today’s argument, here’s what I reported in Greenwire:

A federal appeals court today seemed inclined to rule that a lower court judge acted too hastily in allowing Chevron Corp. access to documents prepared by a consulting firm working for Ecuadorean plaintiffs in a high-profile case that has dragged on for almost 20 years.

The oil giant wants documents from the Weinberg Group, a scientific consulting firm that the plaintiffs had hired to prepare a report on the alleged environmental damages in the eastern part of Ecuador.

Blackbeard, before his head was chopped off

The question, Justice Stephen Breyer said, is not whether Blackbeard himself could be sued, but whether the holding company that oversaw the whole operation, Pirates, Incorporated, was liable for various nefarious acts on the high seas.

Once again, Breyer had unleashed one of his famous hypothetical question (and, no, in raising pirate-related corporate entities, he wasn’t referring to either Johnny Depp or a now sadly departed local hostelry). He brought up the issue during today’s argument in Kiobel v. Shell over whether oil company Royal Dutch Shell PLC (and other corporations) could be held liable in U.S. courts for aiding and abetting human rights abuses overseas.

The statute under the microscope is the Alien Tort Statute, which Congress enacted in 1789 at a time when piracy was a major issue, hence Breyer’s question to Kathleen Sullivan, Shell’s attorney:

Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn’t me; it’s the corporation — do you think that they would have then said: Oh, I see, it’s a corporation.Good-bye. Go home.

Sullivan wasn’t budging:

You could seize the ship with which the piracy was committed, as you could later slave trading ships. But you could not seize another ship, and you could not seize the assets of the corporation.

If only Blackbeard had such lawyers, perhaps he could have avoided his ultimate fate at the hands of the Royal Navy: He was shot at least five times and stabbed 20 times before his head was hacked off, according to his Wikipedia entry.