President’s weekly report — May 27, 2016

PLF testifies before Senate Subcommittee

PLF’s Damien Schiff testified before the Senate Subcommittee on Fisheries, Water, and Wildlife concerning agency abuses of private property owners under the Clean Water Act.  (PLF’s testimony begins at minute 26:25 here).  We focused on a number of recent and ongoing PLF cases challenging EPA’s and the Corps’ expansive and aggressive assertions of the authority despite the federal courts’ stay on the agencies’ WOTUS rule-making.  One of those cases was Tin Cup, LLC v. U.S. Army Corps of Engineers, our recently filed challenge to the Corps’ attempted regulation of permafrost.  That issue was of keen interest to the Subcommittee’s chairman, Senator Sullivan of Alaska. Also of note are the questions from Senator Whitehouse. In 2001 PLF won Palazzolo v. Rhode Island, a case argued by Whitehouse who at the time was Rhode Island’s attorney general.

Challenge to California cap and trade continues

As the press picks up on the faltering cap and trade scheme in California, a faltering that may hurt the not-so-high high speed train boondoggle, see here and here, we filed this supplemental brief in our own challenge, Morning Star Packing Company v. California Air Resources Board. This scheme, which forces some emitters of carbon dioxide to pay for allowances in order to operate their existing businesses is either a tax in violation of California’s Proposition 13 or it’s a fee that violates Proposition 218. For more see our video and blog post.

Tort reform — mixed decision from the California Supreme Court Continue reading

Ubiquitous misstatements in the United States Senate

Sheldon Whitehouse on PLF

Senator Whitehouse calls PLF a “creepy front group” from Senate floor

On May 17 Senator Sheldon Whitehouse gave a 17 minute speech to a largely empty Senate chamber attacking Exxon for that company’s alleged climate change denial. You can see the Senator’s speech here at the 9 hour mark. Whitehouse used the occasion to attack PLF as a “creepy front group” that is in the climate-change denial business. To come to this extraordinary conclusion Whitehouse quoted the first sentence from this petition for writ of certiorari that we filed with the Supreme Court in 2013 in Pacific Legal Foundation v. EPA. In that case we questioned EPA’s legal authority to regulate carbon dioxide. We said, and the Senator quoted: “Carbon dioxide is a ubiquitous natural substance that is essential to life on Earth.” The Senator may not be aware of it, but that statement is completely true and not a single scientist on the planet would deny it. It is hardly a denial of global warming. What’s more, the very next sentence, that Whitehouse did not quote, went on to explain, “Certain prominent scientific organizations have concluded that atmospheric emissions of carbon dioxide from manmade sources contribute to global climate change.” And, nowhere in the petition do we raise any doubt about the science of global warming. We do not even mention that others have cast any doubt on the science. So, at best, Whitehouse is confused.  Continue reading

City of Perris v. Stamper update

The California Supreme Court heard oral arguments yesterday morning in City of Perris v. Stamper, a case in which PLF filed an amicus brief to support landowners’ rights to just compensation for property takings.Indian Ave Reroute City of Perris v Stamper

At issue in the case is whether a city can impose a dedication requirement (i.e., if you want to build on your property, the city gets to take some of your land) to suppress the fair market compensation value of land the city wants to later take via eminent domain.   Continue reading

Access Regulation remains in effect for now

Yesterday a federal district court denied PLF’s motion to enjoin the ALRB’s Union Access Regulation. As you may remember, the regulation allows union organizers to conduct disruptive protests on the private property of agricultural employers in California.

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Feds’ excuses weak in ‘turtle-grate’ affair

Who knew that the federal government could sit for nine years on a simple request to install an endangered-turtle-protecting grate? Each day, an endangered turtle finds itself sucked into an inflow pipe at the nuclear power plant in St. Lucie County, Florida. For over nine years, the owner of the plant has waited for the feds to approve a simple, turtle-protecting grate to prevent many of those turtles from the pipe. You would think that a government that spends millions of dollars prosecuting Americans for violating the Endangered Species Act and other environmental laws could find its way to save endangered turtles when it had the authority and power to do so. But you would be wrong.

Which brings me to my piece in today’s Stuart News, which the paper titled, Feds excuses weak in ‘turtle-grate’ affair. In commenting on this ridiculous turtle situation in PLF’s Atlantic Center’s backyard, I wrote:

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Congressional testimony on the Clean Water Act

Earlier this week, I had the privilege of testifying before the Senate Subcommittee on Fisheries, Water, and Wildlife concerning agency abuses of private property owners under the Clean Water Act.  (My testimony begins at minute 26:25).  I focused on a number of recent and ongoing PLF cases challenging EPA’s and the Corps’ expansive and aggressive assertions of the authority despite the federal courts’ stay on the agencies’ WOTUS rule-making.  One of those cases was Tin Cup, LLC v. U.S. Army Corps of Engineers, our recently filed challenge to the Corps’ attempted regulation of permafrost.  That issue was of keen interest to the Subcommittee’s chairman, Senator Sullivan of Alaska.

PLF argues for constitutional limits on California fuel rationing program

Imagine your state limited the number of drivers licenses to less than those already issued, in order to reduce greenhouse emissions (which many argue raise global temperatures). And then, it sold the right to your license at auction to the highest bidder. How much would you be willing to bid just to keep your drivers license? Do you have enough to outbid the local taxi company, or owners of trucking fleets, or your affluent neighbors for whom cost is really no object? Does this sound like the sort of thing that your government should be able to do to you?

What am I bid for your next door neighbor's driver's license?

What am I bid for your next door neighbor’s driver’s license?

Something like this actually is happening, but PLF is using the California Constitution to fight it. On Monday of this week, PLF filed a supplemental briefing letter with the California Court of Appeal, addressing several questions posed by the Court in Morning Star Packing Co. v. California Air Resources Board. This case challenges an unconstitutional tax that the Air Board is coercing from fuel users and businesses, and spending on over-budget, under-performing special projects like High Speed Rail.

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Fixing the Clean Water Act

On Tuesday, my colleague, Damien Schiff, testified before a senate committee on Environment and Public Works that is investigating government overreach under the Clean Water Act.  The hearing was entitled “Erosion of Exemptions and Expansion of Federal Control — Implementation of the Definition of Waters of the United States.”  Mr. Schiff and others offered powerful testimony documenting specific abuses of the Clean Water Act by the Army Corps of Engineers and the EPA, such as the agencies’ refusal to comply with clear statutory exemptions for such things as stock ponds and normal farming practices.  And the agencies’ reading of the Act to cover virtually all waters in the Country, including permafrost and even shallow groundwater.  One witness testified that her company had been seeking a permit from the Corps for over 27 years to complete a housing project designed to ensure “no net loss” of wetlands with stringent mitigation protocols.

Although some committee members were clearly outraged by these abuses of the Clean Water Act, other committee members seemed unmoved. They viewed these abuses as occasional administrative glitches that do not warrant any changes in the law.  And therein lies the problem–denial in the face of the obvious. Continue reading

ABC in St. Louis reports on the White case

AllmanReportVideo

“Docs v. Glocks” case not about guns but speech, PLF says

Last month, PLF filed a brief in Wollschlaeger v. Governor of the State of Florida. The case, also known as “Docs v. Glocks,” will be argued in June at the Eleventh Circuit Court of Appeals. Recently, I was interviewed for an article in the Florida Record about PLF’s brief and the issue in the case. If you’ll recall, the case is about how much scrutiny content-based restrictions on the speech of professionals should receive from the courts. In this case, a Florida law prohibits doctors from asking their patients about their gun possession unless the question is directly relevant to the patient’s care.

As I note for the article, and as PLF’s brief states, all content-based speech restrictions should receive the highest scrutiny–strict scrutiny–when reviewed by the court. Recent decisions by the United States Supreme Court have confirmed this constitutional requirement, and such stringent review should not be alarming to liberty advocates. Because protecting free speech is a core constitutional value, it makes sense that government must have a compelling reason for restricting the content of speech, and the restriction must also be narrowly tailored to that end. There is no principled reason for distinguishing between the speech of doctors, politicians, or private citizens when restricting the content of their speech.