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Sunday, August 09, 2015

Ind. Decisions - 7th Circuit decides two Indiana cases

In USA v. Jeffrey P. Taylor (ND Ind., Lozano), a 23-page, 3-opinion ruling issued Aug. 6th, Judge WILLIAMS writes for the majority (with Judge Easterbrook concurring in a separate opinion, and Judge Hamilton concurring and dissenting):

Jeffrey Taylor appeals several special conditions of the probation he received after his sexually explicit displays on a web camera and conversations in an internet chatroom with what he thought to be a thirteenyear- old girl. We agree with him that the record does not support a ban on viewing legal adult pornography. Adult pornography did not facilitate or lead to Taylor’s offense here, and there is no evidence or finding that viewing otherwise legal pornography would increase the likelihood he would recidivate. In light of his use of his computer to attempt to contact a young teenage girl, however, we affirm the imposition of a condition that requires Taylor to make his internet-capable devices available for inspection, even without any reasonable suspicion that he has committed a new crime. Finally, we agree with Taylor that the special conditions as currently worded contain an overly broad complete ban on knowing contact with minors. * * *

Taylor’s sentence is VACATED and his case is REMANDED for further proceedings consistent with this opinion.

[p. 18] EASTERBROOK, Circuit Judge, concurring. I join my colleagues’ opinion but add a few words about jurisdiction. * * *

So although I am content to follow Ramer today, I do not view the issue as closed. We appear to have an intra-circuit conflict that needs a fresh look with the benefit of briefs.

[p. 22] HAMILTON, Circuit Judge, concurring in part and dissenting in part. I agree with my colleagues: (a) that the district court had jurisdiction to decide whether to modify Taylor’s conditions of probation, at least under 18 U.S.C. § 3563(c) and United States v. Ramer, 787 F.3d 837 (7th Cir. 2015); (b) that the condition of probation for inspection of internetcapable devices is appropriate; and (c) that the condition on contact with minors needs correction. I respectfully dissent, however, from Part II-B-1 of the majority opinion vacating the condition restricting Taylor’s access to otherwise legal adult pornography.

In State of Indiana v. EPA, a 24-page opinion issued August 7th denying Indiana's petition for review (of EPA's approval of an Illinois SIP revision), Chief Judge Wood writes:

Pursuant to the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq., the Environmental Protection Agency sets standards that specify the maximum permissible atmospheric concentrations for certain harmful air pollutants, including ozone. Geographic areas (which do not necessarily respect state borders) are classified by EPA as “attainment” or “nonattainment” depending on whether they meet the standard for a given pollutant. All states are required to draft a State Implementation Plan (“SIP”) for each pollutant, which outlines the state’s plan for how it seeks to achieve or maintain attainment, and which must be approved by EPA. All SIPs are subject to certain statutory and regulatory requirements; the requirements are more stringent for states with areas in nonattainment. States cannot revise their SIPs without EPA approval.

If an area within a state is in nonattainment for ozone, the state’s SIP must include an automobile emissions testing program. States have some leeway in designing their programs, as long as they meet certain performance standards. Prior to 2005, Illinois used an emissions testing program that tested the emissions of vehicles from all model years; that program was included in the state’s SIP. In 2005, though, Illinois passed a law which relaxed its emissions testing program by exempting pre-1996 model-year vehicles that met certain standards. That change went into effect in 2007, but Illinois did not seek EPA approval at the time. Finally, in late 2012, Illinois submitted a proposed SIP revision to EPA seeking approval of the changes to its emissions testing program.

After the requisite notice-and-comment period, during which the state of Indiana objected to the proposed change, EPA approved Illinois’s SIP revision in 2014. Indiana then filed this petition for review, challenging the EPA approval. Indiana argues, essentially, that the relaxation of Illinois’s emissions testing program will decrease the likelihood that the “Chicago area”—which includes two Indiana counties— will achieve attainment with regard to ozone in the near future. As evidence, Indiana points to its own scientific analysis, which suggests that Illinois’s (unauthorized) use of a relaxed testing procedure was a but-for cause of a single measured Chicago-area violation of the national ozone standard in 2011. That single violation, in turn, resulted in the Chicago area being classified as nonattainment. In other words, Indiana argues that, if Illinois had not relaxed its testing program, Chicago’s ozone levels would have met the national standard, and the area would now be in attainment. According to Indiana, this evidence demonstrates that the change in Illinois’s testing program will impermissibly “interfere with … attainment,” and therefore that the SIP revision should have been disallowed by EPA pursuant to Section 110(l) of the CAA. 42 U.S.C. § 7410(l).

On the preliminary question of whether a justiciable controversy exists, we conclude that Indiana has standing to bring this petition for review. However, because EPA did not act arbitrarily and capriciously in approving the SIP revision, we deny Indiana’s petition.

Posted by Marcia Oddi on August 9, 2015 11:04 AM
Posted to Ind. (7th Cir.) Decisions