Science or politics? Scientists dispute whether Great Lakes’ wolves should be delisted

Last week, 26 scientists submitted a letter to the U.S. Fish & Wildlife Service arguing that Gray wolves in the Great Lakes region are no longer endangered under the Endangered Species Act. This week, 29 other scientists published an open letter opposing any change to the species’ status.

Ordinarily, a dispute between scientists like this wouldn’t be terribly interesting or enlightening. After all, disputes over science and data are essential to the scientific process. this dispute is nonetheless interesting because it exemplifies what happens when science and politics are blurred. Simply labeling policy preferences as science doesn’t make it so. The ESA’s “best available science” standard does not embrace the “best” politics of available scientists.

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Clean Power Plan rumble

So far, twenty-five states and political subdivisions have challenged EPA’s Clean Power Plan, which requires existing and new power plants nationwide to favor wind and solar resources over coal and natural gas when generating electricity.  In addition, dozens of private companies, rural cooperatives, trade associations, and labor unions have filed challenges.

The lawsuits, all filed in the D.C. Circuit, have been brought by a variety of challengers comprising a wide range of interests, including business organizations such as the U. S. Chamber of Commerce, Georgia Transmission Corporation, and Peabody Coal Company, state governments such as Texas, Florida, and Michigan, and labor unions such as the International Brotherhood of Electrical Workers and United Mine Workers of America.

Why has this motley crew assembled to challenge EPA’s Clean Power Plan?  Energy experts and economists have predicted that these regulations will increase utility costs by billions of dollars and will create unprecedented blackouts and brownouts in the years to come, thereby wrecking havoc with the nation’s energy infrastructure and economy.  Although businesses, labor unions, and state governments don’t often see eye-to-eye, in this case they agree that the Clean Power Plan is a wrongheaded approach to dealing with the perceived causes and impacts of global warming.  On the other hand, eighteen states and political subdivisions have sought to intervene to help EPA defend the Clean Power Plan, including New York, California, and Minnesota.  Joining them are  environmental advocacy groups such as Environmental Defense Fund and Sierra Club.

The D.C. Circuit has consolidated the lawsuits into two sets of related cases, one dealing with EPA’s regulations for existing power plants, the other dealing with regulations for new power plants. The legal issues in the two sets of cases are similar but not identical.  They include the issues of whether the Clean Air Act authorizes the regulations and whether the regulations violate the 10th Amendment of the United States Constitution, which reserves certain powers to the states, including the power to allocate the use of state natural resources.  With regard to the regulations covering existing power plants, the petitioners have asked for a stay of the Clean Power Plan pending a full resolution of the legal issues.  Joint briefing on the stay motions is scheduled to be completed by the end of 2015.

For those interested in the details, the docket for the challenges to the regulations governing existing power plants is consolidated in the D.C. Circuit under Case No. 15-1363, while the docket for the challenges to the regulations governing new plants is consolidated under Case No. 15-1381.

A lot is at stake here, and there is still a month left before the statutory deadline for challenges expires.  Expect more filings in the weeks to come.

“Tim The Lawyer” on what if Black Friday were a government program?

I talked this morning with Armstrong and Getty about what Black Friday would be like if it were run by the government. If you missed it, you can listen online here.

I mention Henry Hazlitt’s fantastic book, Economics in One Lesson. You can buy it here, or read it online for free here.

Here’s more on why the minimum wage is the most anti-black law on the books. And here’s more on why paid maternity leave laws hurt women.

I mentioned that our new book, Cornerstone of Liberty, is already shipping on Amazon, although its official publication date isn’t for a couple months yet.

PLF sues again over feds stalling on Endangered Species Act petition

The Endangered Species Act allows interested persons to petition the Fish & Wildlife Service to delist or downlist species based upon relevant evidence. It also requires the Service to respond to such petitions in a timely manner. The Service is first obligated to issue an initial finding on each petition within 90 days of receipt, determining whether or not the petition “may be warranted.” If the 90-day finding is positive, the Service must make a final decision on whether to grant the petition within a year.

But the Service often shirks its duty to respond to petitions. This case is a typical example. In July 2012, PLF filed a petition on behalf of our clients Jim Chilton, the New Mexico Cattle Growers’ Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau to delist the gypsum wild-buckwheat and downlist the black-capped vireo, Kuenzler hedgehog cactus, lesser long-nose bat, and Tobusch fishhook cactus from endangered to threatened. After the Service didn’t make its 90-day finding in time, PLF sued in federal court to compel it to act. In September 2013, the Service belatedly found that PLF’s petition “may be warranted,” initiating the 12-month window to make a final decision. But once again, the Service has failed to comply with the Endangered Species Act’s deadlines.

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Supreme Court will decide the reach of federal control over Alaska


The Supreme Court will soon decide how much control federal agencies can exercise over Alaska’s lands and waters.

A California-sized chunk of the state sits within federal “conservation system units.” These conservation areas include national parks, wildlife refuges, preserves, and so on. Such areas are subject to special federal regulations that limit use of the land for development, subsistence, travel, and recreation.

Large pockets of land owned by the state, private landowners, and tribes sit within these conservation areas, like bubbles trapped in hardened amber. The Supreme Court of the United States will soon address a question that will decide the fate of these lands: are non-federal enclaves inside federal conservation areas exempt from the special set of federal regulations that apply to the surrounding conservation system unit? Continue reading

Learn all about eminent domain in Austin this January

There’s an excellent ALI-CLE program on eminent domain coming up in Austin on January 28-30 at the Hotel Van Zandt.  I’ll be speaking along with a host of experts from around the nation.  You can check out all the details on the program on the ALI-CLE website here.  Hotel accommodations for the program close December 17.    Here’s the program schedule: Continue reading

Washington Post endorses PLF position on DC takings case

On November 15, The Washington Post ran an essay that Todd Gaziano and I wrote, urging the District of Columbia to do the right thing and pay for the property it took from DC’s most vulnerable citizens.  As I explained last week on the Liberty Blog, until recently, DC used an outrageous tax foreclosure law to take homes over relatively small debts.  Homeowners with even small tax debts – $133.88, for example – lost their homes when they didn’t pay on time, and never saw a penny of the excess proceeds when the government and private collectors sold their property.  As we explained in the essay and in a friend-of-the-court brief we submitted to a federal court in support of the dispossessed homeowners, the District of Columbia violated the Fifth Amendment’s guarantee that government can only take property when it is for a public use and when it pays just compensation.  A few days ago, the Post’s Editorial Board quoted from and linked to our article, joining our call for the District of Columbia to do the right thing and pay for the property it took from DC’s residents. The Editorial Board wrote,

The District contends that the constitutional bar against unlawful taking doesn’t apply in the lien cases because home equity is not really property, and these residents forfeited their rights when they failed to pay taxes.

“Doubling down on the dispossessed” was the apt characterization of this position in a recent essay in The Post’s Local Opinions section. . . . We urge [D.C. Attorney General Karl] Racine to reassess decisions about this suit and consult with the mayor and D.C. Council about how to compensate these residents for their losses.

Read the rest of the Editorial Board’s opinion here.

Rejecting the WOTUS rule in the courts and in Congress

Earlier this month, the U.S. Senate used a rare procedural device to pass Senate Joint Resolution 22, which would effectively negate the Waters of the United States (WOTUS) regulation issued jointly this summer by U.S. EPA and the Army Corps of Engineers. The Senate “resolution of disapproval” was sponsored and passionately advanced by freshman Senator Joni Ernst (R-IA), who argued that the WOTUS rule was an illegal land and water power grab that especially hurt farmers.

Regular Liberty Blog readers know that PLF has been battling the federal agencies’ jurisdictional creep (ok, gallop) for decades, including having the prior rule’s overly expansive scope struck down by the Supreme Court in its Rapanos decision. In recent months, PLF joined 30 states and numerous other entities challenging the illegal nature of the current (and even broader) WOTUS rule.

As Reed Hopper has explained, two federal courts have issued preliminary injunctions stopping the agencies from enforcing the WOTUS rule, holding that the states and others are likely to prevail in their challenges to have the rule struck down. One stay is at the district court level and applies throughout the 13 states whose officials filed in that court. The second was issued by the U.S. Court of Appeals for the Sixth Circuit and applies nation-wide, at least pending its determination on its own jurisdiction. (Interesting, the United States supports the Sixth Circuit’s jurisdiction, even though it opposed the stay the court granted.)

Both courts’ stays might normally provide a distracted and oft-divided Congress an excuse not to take responsibility for the stunning agency overreach relating to its laws, but the House is going to vote on the same resolution of disapproval to overturn the WOTUS rule and send it to President Obama for his approval or veto, likely the first or second week of December. Continue reading

President’s weekly report — November 20, 2015

Mobile home park shakedown scheme challenged

PLF attorneys filed this complaint this week in Jisser v. City of Palo Alto on behalf of a couple that would like to retire from the business of running a mobile home park but cannot do so unless they pay $8 million to buy our the current residents.  The City says the park contains some of the few affordable housing units in the City — but that’s not the Jissers’ fault — it’s the fault of the City for years of no-growth rules and regulations.  The Jissers were given two choices by the City: remain in the mobile home park business forever or pay $8 million to get out. But there’s a  third option that the City hadn’t apparently thought of:  a lawsuit against the City based on the constitutional precedents we set in Nollan and Koontz. For more, see our website’s case page here, our litigation backgrounder here or our blog post here.

Victory in Florida manatee case

In response to our petition to the Florida Fish and Wildlife Conservation Commission, the Commission has agreed to amend its proposed regulations for manatee slow-speed zones near Indian Rocks Beach — so that those regulations will now cover just those areas where manatees actually swim.  It’s nice to see commonsense prevail.  For more, see our blog post here.

Making government pay for its wrongdoing. Continue reading

Florida local government loses when it tries to take family property

Earlier this week, Pacific Legal Foundation filed an amicus brief in favor of the Johnson family, a family in the middle of a long, nasty litigation with the Town of Ponce Inlet, Florida. The town council made many promises to entice the Johnsons into investing millions of dollars in real estate for a large development on the water, only to have that same town council turn against them and refuse to allow the development after they made their investments. A jury saw through the Town’s action and awarded millions of dollars to the Johnsons because they lost the ability to use their land after the Town pulled the rug out from under them. The Town of Ponce Inlet has appealed and our brief argues that the appeals court should affirm the jury verdict and court judgment. You can read our amicus brief here.

My PLF Atlantic Center colleague, Christina Martin, wrote about this case a few years ago. What she said about the stakes of this case, and cases like it, remains true today:

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