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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Should government permits override property rights?

How would you respond if a neighbor began covering your property with a strange black mold? Once you stopped shouting expletives at him, you’d probably insist that he stop and clean up the damage he’s done. Now imagine that he refused, insisting that the government gave him permission to do it and the damage he’s doing to your property is your problem.

heaven_hillAs crazy as that sounds, such arguments are routinely made. In Kentucky, for instance, homeowners near distilleries have noticed a mold growing on everything they own. It’s called “whisky fungus” and it is an unintended byproduct of distilling. In other words, it’s pollution.

As property owners are calling distilleries to account for the damage to their property, the companies are claiming that they can’t be held responsible because they have a federal pollution permit issued under the Clean Air Act. In effect, the companies are asserting that the federal permit eliminates its neighbors’ property rights.

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Conservation easements must be interpreted to encourage cooperation not conflict

flickr_-_usdagov_-_20130501-nrcs-lsc-0607Private investment in environmental conservation is exploding, totaling more than $8 billion over the last decade. That will likely continue to grow. Industry recognizes that consumers are more environmentally sophisticated than they used to be. And, as incomes grow around the world, more people are willing to pay a premium for a better environment. One important tool for this private conservation is conservation easements. But for this tool to be most effective, it’s imperative that courts interpret them neutrally, rather than putting a thumb on the scale for or against conservation.

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Private environmental enforcement is no substitute for property rights

I previously criticized the abuse of the Clean Water Act’s citizen suit provisions to extort lucrative settlements for inconsequential or exceedingly minor regulatory violations. At first blush, that might seem inconsistent with libertarian’s general preference for privatization. It also appears to run counter to the libertarian or anarchist preference for the nuisance system over regulation.

Appearances can be deceiving. Simply put, the Clean Water Act’s private enforcement provisions are a Frankenstein mutation of the nuisance system.

Stormwater Manhole CoverThat’s especially true when it comes to diffuse pollution sources with difficult to trace impacts, like stormwater. Compounding the error, environmental plaintiffs are not obliged to show personal injury and, if a lawsuit succeeds, they will be lavishly rewarded with attorney’s fees and other costs that can easily exceed any environmental harm avoided.

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Republicans propose a carbon tax

Last week, several prominent Republicans pitched a carbon tax to the Trump administration. The plan has four pillars, meant to make the idea more palatable to conservatives

First, the federal government would impose a gradually increasing tax on carbon dioxide emissions. . . Second, the proceeds would be returned to the American people on an equal basis via quarterly dividend checks. . . Third, American companies exporting to countries without comparable carbon pricing would receive rebates on the carbon taxes they’ve paid on those products, while imports from such countries would face fees on the carbon content of their products. . . Finally, regulations made unnecessary by the carbon tax would be eliminated, including an outright repeal of the Clean Power Plan.

Of course, this proposal is a nonstarter if you don’t believe in climate change or that humans contribute to it. But if you do—even if you doubt the dire predictions of the magnitude of that change made by many climate activists—there are several things to like about this proposal.

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Does the Constitution forbid the President from favoring deregulation?

captureLast week, a lawsuit was filed challenging the President’s recent executive order commanding federal agencies to repeal two regulations for every new one proposed and reducing regulatory costs. The complaint raises a litany of constitutional and statutory claims.

The plaintiffs are Public Citizen, NRDC, and the AFL-CIO, all of whom fear that the order will impair their interests by reducing regulations. They raise separation of powers, Take Care clause, and Administrative Procedure Act claims against the order.

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States cannot veto Congress’ decisions to put federal lands to productive uses

For decades, the federal government’s ownership of vast areas of the west, and its decisions to restrict the productive uses of these lands, have been a constant source of conflict. States, local communities, and neighboring property owners complain that these decisions, which can have significant impacts on their local economies, should not be made by distant politicians and bureaucrats in Washington.

However, their calls for the federal government to transfer these lands to states or private property owners, as the government did in eastern states, have been sharply opposed by environmentalists. They argue that only the federal government can decide how “our” lands should be used. States have to accept Congress’ decisions about these lands.

seal_of_california2c_department_of_education2c_1430_n_street2c_sacramento2c_california
California’ seal features a prospector, but the state has recently cooled on mining

But the tables have turned in a case that Pacific Legal Foundation is asking the U.S. Supreme Court to hear. Federal law encourages mining on many federal lands. California disagrees with Congress’ decision and, spurred on by environmentalists, has adopted an outright ban on suction dredge mining within the state, including on federal lands. Apparently, all that talk about states having to accept Congress’ decisions about federal land had an unstated qualification—except those states where environmentalists hold political power.

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