Supreme Court should preempt state laws to save environmental federalism

The title may seem paradoxical, at first. But it gets at one of the most important and misunderstood aspects of federalism. Contrary to “states rights” advocates, federalism does not mean that the federal government is limited but state and local governments can do whatever they want. Rather, federalism is a means of protecting liberty by dividing government power among two levels of government, with each checking the other.

oblique_facade_22c_us_supreme_courtThis week, PLF filed the final brief in the Supreme Court asking it to review a challenge to California’s suction dredge mining ban. The case (Rinehart v. California) tees up this distinction perfectly. Although the case challenges the state ban as preempted by federal law, it will protect the states’ proper role in environmental federalism in the long run.

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Does the environment trump constitutional limits on federal power?

UTPDs_in_burrowYesterday, the Tenth Circuit joined a disappointingly large number of federal courts to say “yes.” In People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, the court stretched the elastic Commerce Clause—which authorizes federal regulation of economic activity that has a substantial effect on interstate commerce—beyond recognition, upholding federal regulation of noneconomic activity with no appreciable connection to interstate commerce. In adopting this interpretation, the Tenth Circuit overturned a decision from a federal court in Utah holding that the federal government overstepped when it broadly forbade “take” of Utah prairie dogs, a species with no tie to commerce.

From a libertarian perspective, this decision is doubly harmful. First, it undermines, if not completely forbids, the state of Utah’s ongoing efforts to protect the Utah prairie dog without imposing unfair burdens on private property owners. Disproving decades of environmental groups’ insistence that states are unwilling to protect species, Utah admirably stepped in after the federal court enjoined federal regulation. Working with property owners, rather than against them, the state safely and humanely captures prairie dogs in problem areas—backyards, playgrounds, airports, and cemeteries—and relocates them to conservation lands where they can be permanently protected. After decades of suffering under burdensome federal regulations, the future was starting to look bright for both prairie dogs and property owners.

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Congressional hearing questions ocean monuments: Is the ocean “LANDS owned or controlled” by the gov?

Yesterday, the House Committee on Natural Resources’ Subcommittee on Water, Power, and Oceans held a hearing on the impacts of federal marine monuments and marine sanctuaries on fishing and other industries.

The timing of this hearing was fortuitous as I’d recently filed Pacific Legal Foundation’s lawsuit challenging the creation of a marine monument in the Atlantic Ocean as beyond the Antiquities Act.

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How to promote federalism and reduce Clean Water Act abuse


A water of the US, according to federal bureaucrats

The Clean Water Act is controversial in large part because there’s no realistic chance that an ordinary person could determine whether bureaucrats would deem her land subject to federal regulation (even the Washington Post’s fact checker can’t do it). Yet a property owner who guesses wrong faces federal fines of up to $47,000 a day and imprisonment.

Despite the President’s order to reconsider the much-maligned (and rightly so) WOTUS rule, the problem won’t go away because  the foundation for the rule remains in place. That foundation is a guidance document issued after the Supreme Court rejected the government’s excessive claim of authority under the Clean Water Act in Rapanos v. United States. After Rapanos came down, the agencies issued the guidance exploiting every ambiguity in the court’s opinions to reassert expansive authority. In the Daily Caller, I have an article explaining the problems with that guidance document, including that it was never submitted to Congress as required by the Congressional Review Act. As a result, the guidance document cannot be given legal effect and, if it is belatedly submitted to Congress, it can disapprove the interpretation and block any future administration from readopting it.

Because the controversial guidance wasn’t submitted to Congress, the administration has an opportunity to push back against decades of Clean Water Act abuse. Another opportunity for reform would be to shift much of this control from unaccountable federal bureaucrats to states. Under the Clean Water Act, states can take over permitting but the U.S. Army Corps of Engineers has been resistant to ceding control. Read More »

Fact checkers should steer clear of difficult legal questions

[Update: The Washington Post’s Fact Checker has updated the article to acknowledge this response.]

Last week, President Trump issued an executive order directing government agencies to reconsider the much maligned Waters of the United States (or WOTUS) rule. In the press conference for the order, Trump referenced a case that I litigated at PLF last year on behalf of Andy Johnson, a Wyoming property owner who was threatened with up to $20 million in fines for building a pond on his private property. The President explained that

[t]hese abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states. It’s a horrible, horrible rule.

Although I don’t agree with the President on much, he was exactly right on this point. Imagine my surprise when the Washington Post’s “Fact Checker” gave the President four Pinocchios for his remarks.

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If the Endangered Species Act were a doctor, it would lose its medical license

sen-_john_barrasso_official_portrait_7-17-07Last week, the Senate Committee on Environment and Public Works held a hearing on modernizing the Endangered Species Act. Sen. Barasso, who chaired the meeting, began by colorfully analogizing the statute to a doctor. The Endangered Species Act has a recovery rate of about 2%. If a doctor only cured 1 out of every 50 patients, he’d quickly lose his license and his reputation, Sen. Barasso explained.

But unlike the hypothetical doctor, the Endangered Species Act is not in disrepute. It has plenty of critics, to be sure. But, by and large, it’s a popular statute. Environmental groups routinely release surveys showing that it’s supported by 90% of people or more. Given its low recovery rate, why does it enjoy such support?

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Limits on states’ influence over federal lands cut both ways

Last week, the Washington Times published my op-ed on PLF’s challenge to California’s ban on suction dredge mining. From the introduction,

If you ask a rural Westerner how he feels about federal lands, the response will likely contain plenty of four-letter words. For decades, decisions made by faraway bureaucrats to restrict the productive uses of these lands have significantly affected nearby property owners and local economies, creating a constant source of conflict.

. . .

When these federal decisions are criticized, supporters respond that only the federal government can decide how “our” lands should be used. Yet blue states and environmentalists do not think that what is good for the goose is good for the gander. When Congress decides to put federal lands to productive use, they proclaim that states in which they hold political power should be able to overrule federal decisions at will.

You can read the rest here. For more on this case and conflict over federal lands, read this and this.