Refusing to regulate water use through the endangered species act does not mean water use is unregulated

Last week I commented on the Fifth Circuit’s favorable decision in The Aransas Project v. Shaw.  An interested reader (who also appears to be a member of the plaintiff organization in the Aransas case) posted a reply of sorts, asserting that I “seem[] to believe there should be no regulation of water from lakes in Texas.”

Not to put too fine a point on it, but there is no basis in my post for this assumption.  The whole post is about the system that the State of Texas uses to do exactly that – regulate the use of water from natural sources.  There is a body of law that regulates water use in Texas; an important issue in the Aransas case was whether that existing system of regulation would be replaced by a different one (a habitat conservation plan under judicial supervision) in the Guadalupe Basin.  There are many reasons for people to be concerned about that change.  One of which is that state law systems to regulate water rights must, under our Constitution, afford due process protections to those who own water rights.  The absence of such protections is a weakness of the Endangered Species Act, as legal scholars have discussed.

One of our interests at Pacific Legal Foundation is in the balanced and rational administration of the Endangered Species Act, including the principle that human needs are not less important than those of wildlife.  One application of this principle is that people should not be punished under the Act when they have not violated it.  The Fifth Circuit’s analysis of the evidence presented at trial shows that the water diversions were not the legal cause of harm to the cranes in the winter of 2008-09.  This also highlights the unsuitability of the Act as a large scale water management tool, for which it was neither intended nor written.

As for as the pros and cons of Texas’ system for regulating water rights, we are all fortunate to live in a nation with democratic processes available for changing elements of state law with which we disagree.

PLF defends school choice in Alabama

PLF has filed an amicus brief in the Alabama Supreme Court defending the constitutionality of school choice in the Heart of Dixie. The Alabama Accountability Act creates a system of tax credits to help parents transfer their kids from failing public schools to better public or private schools. Should be uncontroversial, right?

Wrong. The statute was promptly challenged by the president of the teachers’ union, a public school superintendent, and a state legislator. Defendants were the state auditor and parents of students desperate for opportunity. The plaintiffs raised both procedural and substantive challenges, chiefly about the propriety of any incidental benefits that religious schools might receive and whether the program will increase the state’s deficit.

The trial court sided with the plaintiffs, threatening the last best hope for students. PLF’s brief explains why the trail court shouldn’t have ignored the important role of parental choice in the scheme and, if every study on the fiscal impacts of school choice is any indication, the Accountability Act will reduce burdens on taxpayers rather than increasing them.

The brief highlights the range of options available to parents and how seriously they take this choice. Contrary to the plaintiffs’ assumptions, the parents are not merely being used to funnel money to private institutions. Unless private schools are better than the public options available to parents, no money would ever go to any.

Furthermore, school choice has been saving states money since 1873. Maine and Vermont have aided rural kids attending private schools while saving an average of $6,000 per pupil. More recent studies confirm that Maine and Vermont are not unique. Six empirical studies have analyzed the effect of voucher and tax credit programs on tax-payers. All have found that they save the state money. There’s no reason to assume that Alabama will be any different.

Hopefully, the Alabama Supreme Court will not lose sight of what’s really at stake in this case — the futures of the countless students stuck in 78 public schools that the state acknowledges are failing them.

California appellate court vindicates Proposition 13’s eminent domain protection

Enacted by voters as a ballot initiative in 1978, California’s Proposition 13 gives property owners relief on their tax bills by limiting property taxes to one percent of a property’s value, with a maximum two percent increase for inflation per year. The property’s “base value”—used to calculate the one percent bill—may be reassessed when the property is sold. In 1982, voters approved a follow-up initiative, Proposition 3, to ensure that people don’t lose that protection—the frozen, base value of their property—if government takes their land by eminent domain. Absent Proposition 3, someone buying a new piece of property to replace what the government took would be subject to higher property taxes, because the sale would trigger a reassessment of the new property under its current, fair market value. Continue reading

Mixed week for liberty in the taxi industry

Congratulations to our friends at the Institute for Justice who, due to a legal victory last year, saw Milwaukee eliminate its cap on the number of taxi licenses available. As Reason reports, this has an incredibly significant impact on the taxi industry. Under the cap, licenses had a nominal cost of $85. But, because so few licenses were available, the fortunate few members of the cartel could fetch as much as $150,000 for their licenses on secondary markets. By removing the cap, Milwaukee has made it possible for hard-working entrepreneurs to enter the industry at the more reasonable price of $85.

But the news is not all good. New York’s Taxi and Limousine Commission has gone completely out of control in its dogged pursuit of the city’s taxi cartel’s interests. Earlier this month, we noted the Commission’s impoundment of a car because its owner gave free rides to cancer patients. Now, it’s reported that Commission agents forced a man and his pregnant wife to take a long, frigid walk home last January. Why would they do something so ridiculous? Because they spotted him picking up his wife from the curb outside of a friends apartment. That was enough for the officers to decide that he must be operating an illegal cab, threatening the cartel’s profits.

That was no isolated case. Commission agents have impounded thousands of cars from innocent people giving rides to friends and loved ones. Even when a judge eventually throws out these ridiculous charges, the poor victim will have to pay out hundreds of dollars in city, towing, and attorneys’ fees. Is protecting the cartel really this important?

Delta smelt rehearing denied

This morning, the Ninth Circuit denied a rehearing before the entire court, leaving March’s panel decision in place. The denial sets the case up for a petition to the U.S. Supreme Court. Longtime Liberty Blog readers will recall that PLF previously sought Supreme Court review of the case on our Commerce Clause challenge. Although that issue is no longer live, there should be plenty of issues remaining to interest the judges.

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Federal court rejects state liability for take of endangered whooping cranes based on issuing water right permits

In a recent decision, the Fifth Circuit Court of Appeals held that Texas’ water rights permitting system did not result in illegal take of endangered whooping cranes merely because water was legally diverted from rivers that ultimately flow to one of the rare birds’ habitats on the Texas Gulf Coast. This is an important victory for balance and sanity in the administration of the Endangered Species Act. The Fifth Circuit chided the trial court for not properly applying the well-understood rules of proximate cause in determining whether the state agency had killed whooping cranes through its water rights permitting system, and also clarified important limits on when the future use of property can be enjoined even where a past ESA violation has been established.

Whooping cranes populations are still low but are steadily rising overall after several decades of federal protection. They migrate annually between two refuges, one in Canada and the other, the Aransas National Wildlife Refuge, on the Gulf Coast of Texas. A severe Texas drought in 2008-09 stressed the cranes and contributed to a number of deaths. The drought year was a set back, but the evidence is that their numbers have continued to climb since then. Despite this overall good outlook for the species, a group of fishing and bird watching guides and other activists decided that the diversion of water hundreds of miles upstream had killed the cranes, and sued the State of Texas for legally permitting those diversions.

The trial court ruled that Texas had killed 23 cranes by permitting water diversions dozens and even hundreds of miles away, and ordered the state to propose a habitat conservation plan and apply for an incidental take permit, under which federal wildlife conservation laws would have displaced Texas state law in the approval and administration of water rights. But the Fifth Circuit reversed the trial court, and held that the chain of events that led from distant water diversions, to small changes in salinity in the refuge, to changes in number of blue crabs, to changes in crane foraging patterns, to stress and ultimately the death of several cranes, every step of which was suggested by computer modeling and estimation rather than direct proof, was too attenuated a sequence for the issuance of water right permits to be the legal or proximate cause of the crane deaths.

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Power plants and renewable energy

Last week, Pacific Legal Foundation submitted comments (joined by Dalton Trucking and the Center for Environmental Science, Accuracy, and Reliability) on EPA’s proposed greenhouse gas rule for existing coal-fired power plants.  The rule is estimated to reduce greenhouse gas emissions 30% over the next few decades, and seeks to achieve that goal in part by encouraging greater wind and solar energy generation.  The Foundation’s comment letter focuses on EPA’s failure to consult under the Endangered Species Act over the proposed rule’s adverse impacts on protected species and their habitat.  The ESA requires federal agencies to consult with the Fish and Wildlife Service and the National Marine Fisheries Service to ensure that federal activities do not jeopardize the continued existence of protected species or adversely modify their critical habitat.

PLF’s comment notes that wind and solar energy are well known to have significant adverse effects on wildlife.  Yet EPA believes that its proposed rule does not require consultation, notwithstanding the rule’s reliance on increased wind and solar energy generation.  The agency reasons that any species impacts from wind and solar energy sources would be indirect, because under the rule states are simply required to meet the pertinent greenhouse gas reduction target; the rule doesn’t mandate that the target be met in a particular manner.  Yet, the reasonableness of EPA’s targets is based in part on the availability of wind and solar energy, and thus it’s the agency’s expectation that those sources will be used to meet the target.  Hence, it’s certainly foreseeable that the rule’s implementation will lead to great wind and solar energy generation.  Moreover, the pertinent ESA regulations are clear that just indirect effects are sufficient to trigger consultation.  Finally, the threshold for consultation is notoriously low (i.e., “may affect” species or habitat).

Agency actions shouldn’t get a pass from vigorous environmental review simply because the agency and its green allies believe the action to be environmentally green and benign.  EPA should consult on its proposed rule.


President’s weekly report — July 18, 2014

Equality Under the Law Project — Implicit Bias Victory

The Iowa Supreme Court today issued this unanimous opinion in Pippen v. State of Iowa, tossing out an “implicit bias” discrimination lawsuit against the State of Iowa. Under the theory of the case, because Iowa state government officials had, unbeknownst to themselves, an “implicit bias” against certain minorities, they were engaged in unconscious discrimination. In other words, the officials were discriminating against minorities not because they intended to, but because deep down in their subconscious minds they had negative thoughts about minorities. Sort of reminds of us the “Monster from the Id” in The Forbidden Planet, circa 1956. Well, this is Iowa, not Altair-5, and the Iowa Supreme Court struck the case down, pointing out that the plaintiffs could point to no discrete employment practice that caused any alleged injury. You can read more about the case on our blog, and our amicus brief here.

Monster from the Id

Equality Under the Law — More from Texas and the 5th Circuit

In Fisher v. University of Texas, the Fifth Circuit Court of Appeal ruled against Abigail Fisher in her challenge to the University of Texas’s “holistic review” admissions process that considers the race of the applicant.  This is after the United States Supreme Court told the court to take a more careful look at the University’s discriminatory policy in order to determine if it is “narrowly tailored” and whether there are “less restrictive means” of achieving racial diversity.  There was a strong dissent from Judge Garza who suggested that the University’s stated goal of reaching a “critical mass” of diversity was a standard without meaning.  We had filed this amicus brief urging the court to rule for Fisher.  You can read more in our blog post here.  Now, we’re not exactly sure what “critical mass” is supposed to mean in the classroom today either, but this is the sort of critical mass that some of us learned about in the classroom back in the day:

Pretty powerful stuff, critical mass is.

Property Rights — Coastal Land Rights Project

We argued the Lynch v. California Coastal Commission before the California Court of Continue reading