President’s weekly report — August 28, 2015

WOTUS halted!

A federal district court judge in North Dakota enjoined with this order EPA from enforcing it’s new breathtakingly illegal Waters of the United States rule.  The court found that the harm to the states who had sued was potentially considerable and that there was a likelihood of success in the merits.  This result should have a positive impact on our separate lawsuit as well as on every other landowner across the United States (though you should read our blog here on EPA’s attempt to ignore the court’s order.)

New wetlands lawsuit

We filed this complaint in Andy Johnson v. EPA this week.  EPA is demanding that Johnson remove his lawful, state-permitted, and environmentally beneficial stock pond — and until he does he must pay fines of $37,500 per day (since 2014 so the figure now approaches $20 million).  That’s quite a bit more than Johnson, a part-time rancher and full-time welder is able to pay.  EPA simply refuses to recognize the existence of a stock-pond exemption to the requirement that landowners get a Clean Water Act permit before touching waters of the United States.  But the exemption is clearly part of the law; EPA just won’t recognize it.  For more on our new lawsuit, see our blog here. We’re working on this case with the able assistance of Wyoming attorneys Karen Budd-Falen and Dan Frank.

Environmental review abuse

We filed this amicus brief in Cleveland National Forest Foundation v. SANDAG. The case concerns San Diego’s new-age plan to stuff all new development in to small “transit-friendly” locales.  Enviros and the state challenged it for not being aggressive enough in reducing emissions, although it forthrightly disclosed what emissions will be under the plan. Their sole argument was that the environmental analysis failed to adequately address the plan’s “consistency” with a vague, nonbinding executive order and the state’s “long-term climate stabilization objectives.” The brief argues that mere policy objections to a project, even if they involve environmental policy, are not a valid basis for a CEQA claim.

PLF prevents latest attempt to limit Proposition 209

Last month I blogged about the case of Baez v. California Public Employees’ Retirement System, where a Los Angeles Appellate court fundamentally changed the application of Proposition 209 to include only one kind of discrimination–that involving preferential treatment.  The Baez court is the first to hold that Proposition 209 does not cover prejudicial treatment of minorities.

PLF sent a letter brief to the California Supreme Court, arguing that the opinion should be depublished, which means it cannot be cited as legal precedent in later cases.  On August 19, the Court agreed, ordering that “[t]he Reporter of Decisions is directed not to publish [the opinion] in the Official Appellate Reports.” Continue reading

Big victory for charter schools in Philadelphia

The Commonwealth Court issued a major victory to charter schools in Philadelphia yesterday when it ruled the Philadelphia School District cannot unilaterally decide to ignore state law. In a case that PLF has been following very closely, the school district had tried to suspend state law law preventing it from imposing enrollment caps on charter schools.

As is the case with charter schools across the country, they often face stiff opposition from entrenched interests that don’t like the competition. So when charter schools proved to be successful in Philadelphia, the establishment wanted to stop them and capped the number of students they could enroll. The major problem with that — other than the fact that it denied parents and students the right to choose the best school — is that Pennsylvania state law specifically forbids it from imposing enrollment caps on charter schools. The Commonwealth court held that the school district cannot simply suspend state law on its own. We don’t yet know if the school district will appeal this decision, but if it does, PLF will be there fighting with the students.

This is a great decision and a great way to cap Back to School Choice Week here at PLF.

Shameless EPA tries to side-step court order blocking enforcement of controversial Clean Water rule

It is hard to imagine a more blatant display of bureaucratic hubris than the EPA’s handling of its highly disputed rule redefining ” waters of the United States.”

The rule was supposed to be a joint effort between the Corps of Engineers and the EPA, who share enforcement responsibility for the Clean Water Act.  But leaked memos show the EPA acted unilaterally in adopting the final rule over the objections of Corps officials and experts who declared the rule scientifically insupportable, “legally vulnerable” and “difficult to implement.”

The rule itself is a blatant power grab that covers almost all waters in the U.S. and much of the land in direct conflict with the Clean Water Act itself, multiple U.S.Supreme Court decisions, and long-held limits on federal constitutional authority.  It was no surprise therefore that the rule was immediately challenged in court, including ten different suits, more than 70 plaintiffs and 30 states.

Yesterday, we noted here, that a federal judge had issued a nationwide injunction blocking the rule from enforcement because the rule is likely inconsistent with PLF’s Rapanos case and the proper standards for rule-making.  But the EPA now arrogantly claims the injunction only applies to the states that brought the injunction and that the EPA was pushing ahead with the rule throughout the rest of the Country.  The states involved in the injunction include North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico.

Although an injunction is typically limited to the parties involved, the EPA is a party to the injunction and therefore is bound by its terms.  And by its terms the injunction prohibits enforcement of the rule until further notice by the court.  The EPA is being disingenuous when it claims the injunction does not have nationwide applicability.  Challengers to a nationwide regulation are not required to file a suit in every jurisdiction in the Country to get the rule overturned.  EPA should own up to its error and follow the law.

Court puts Clean Water Rule on indefinite hold

Our challenge to the Corps and EPA’s illicit rule expansively redefining “waters of the United States,” subject to federal control under the Clean Water Act, just got a big boost.   A federal judge in North Dakota stopped implementation of the rule which was scheduled to go into effect on Friday, August 28.  This could effectively put the rule on hold until our suit, and nine similar suits, have been fully litigated.  Interestingly, this ruling followed two other rulings issued in the last few days that held the district courts did not have jurisdiction to hear the cases.  So there is a split among the district courts of North Dakota, W. Virginia and Georgia.  Now the 6th Circuit will have to decide whether the cases should have been brought in the Circuit Courts of Appeal to begin with.  In other words, a showdown looms over which court has the authority to hear the cases.

The decision of the Judge in North Dakota is salutary in providing a detailed and well-reasoned analysis that tracks the very arguments we raised in our case.  Fortunately, North Dakota lies in the same 8th Circuit Court of Appeals as Minnesota, where we filed our suit.  This will give us an opportunity for direct participation of any appeal.

Here is a summary of the court’s conclusion:

The court finds that under either standard – “substantial likelihood of success on the  merits” or “fair chance of success” – the States are likely to succeed on their claim because  (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and (2) it appears likely the EPA failed to comply with APA requirements when promulgating the Rule. Additionally, the court finds the other factors relevant to the inquiry weigh in favor of an injunction.

You can read the whole opinion here.

Revisiting my podcast with Cato’s Andrew Coulson

For Back to School Choice Week 2015, I am reposting my podcast with Andrew Coulson, Director of the Center for Educational Freedom at the Cato Institute. It is the best podcast I have been a part of, and it is especially apt for Back to School Choice Week. Andrew and I discuss a variety of school choice topics, and we even briefly rehash a debate we had back in 2011 concerning the utility of tax credits over vouchers.

Listen here.

PLF defends small farmer from big-time EPA bullying on Courting Liberty

Wyoming farmer Andy Johnson built a stock pond with state approval. The EPA is threatening him with astronomical fines of $37,500 per day.


Andy Johnson is being forced to dismantle his stock pond – even though it benefits the environment, and even though EPA has no jurisdiction over livestock ponds…


PLF challenges EPA’s threat of massive fines against innocent property owner for improving the environment

Andy Johnson owns eight acres of land in Fort Bridger, Wyoming, where he’s made his family’s home and raises livestock. A small stream crosses his property near the road and provides water for his livestock, as it has for prior owners going back decades. In 2012, he erected a small dam on the stream to create a stock pond to provide more reliable, safer access to water for his animals.

However, in creating that stock pond, Andy didn’t only think about the pond’s benefits for his animals. He also sought to maximize its incidental environmental benefits. And he was incredibly successful. Wetlands and riparian areas sprang up around the pond. It provides scarce, quality habitat for fish and a water source for wildlife, including bald eagles. And, by allowing the water to pool before proceeding downstream, it cleans the water that passes through it.

What’s your reaction to Andy’s decision? Your instinct — like mine — is probably to praise him.

Unfortunately, that’s not how EPA responded. Instead, it sent him a compliance order accusing him of violating the Clean Water Act. (Ironic, isn’t it, that EPA’s accusation is based on a project that cleans water?) The compliance order threatens Andy with fines of up to $37,500 per day if he doesn’t remove the pond and bend to EPA demands.

It gets worse.

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Blaine Amendments: One of the biggest impediments to nationwide school choice

In 2002, school choice advocates won a major victory when the Supreme Court of the United States upheld an Ohio scholarship program designed to provide better educational options to students in inner-city Cleveland. The program provided district students with a scholarship to attend any participating public or private school within the district boundaries, including religiously affiliated schools. The poorest families were given priority: those with incomes more than 200% below the federal poverty line were eligible to receive 90% of tuition up to $2,250. Like all school choice programs, it was designed to give low-income students in failing public schools the option of attending a better school.

Who would oppose that? Well, as my colleague Wen Fa noted yesterday, those who stand to lose their monopoly – the teachers’ unions and administrators of failing public schools. But those groups can’t fight school choice programs in court on the ground that they are bad for business. They need a constitutional argument that can actually win. That’s where the Establishment Clause of the First Amendment comes in. Several taxpayers challenged the Cleveland program on the ground that it impermissibly “establishes” religion because some of the taxpayers’ money that went to fund the scholarships ultimately ended up paying tuition at religious schools. In Zelman v. Simmons-Harris, a 5-4 majority of the Supreme Court rejected that argument, concluding that the program was constitutional because it awarded money to parents and students (and not the schools themselves). The Court rightly declared the program to be one of “true private choice.”

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California Supreme Court to scrutinize city’s money grab

Are you paying hidden taxes through your electric utility bill?  The residents of Redding are, and a lawsuit to stop it has reached the California Supreme Court.  PLF attorneys filed a brief last week challenging those taxes in Citizens for Fair REU Rates v. Redding.

When the Redding City Council approved the city’s budgets for fiscal years 2009 and 2010, it also approved the yearly transfer of money from its municipally owned electric utility to the city’s general fund in an amount equal to 1% of the utility’s assets.  That’s about $6 million dollars in FY 2009-10 and another $6 million dollars in FY 2010-2011.  After being warned about the utility’s low cash reserves, the City Council chose to continue transferring funds away from the utility by making the rate payors bear the loss.  It passed a resolution approving steep utility rate increases of 7.84%, effective January 2011, and another 7.84%, effective December 2011 – a total increase of 15.68%.

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