President’s weekly report — May 29, 2015

POTUS’s WOTUS headed for SCOTUS?

The President’s EPA minions issued the long-dreaded Waters of the United States rule this week, guaranteeing another clash before the Supreme Court of the United States. For more, and a link to our comments on the rule as proposed, see this blog post. Ever since our victory in Rapanos over EPA’s interpretation of “navigable waters” in the Clean Water Act, EPA has done everything in (and out) of its power to eviscerate the Court’s opinion.  Now it has truly run amok with a new rule asserting vast new and expanded authority over wetlands and others waters, including many that are neither wet nor flowing.  Wikipedia defines “running amok” to mean: “”an episode of sudden mass assault against people or objects … that  …  is now increasingly viewed as psychopathological behavior.”  How else can one explain the EPA’s twisting of the English language to achieve results that are beyond absurd?  As Reed Hopper explains in a recent blog post:

For example,  the word “navigable” is defined to include nonnavigable.  The word “waters” is defined to include areas of mostly dry land.  The word adjacent, which normally means abutting, is defined to include neighboring which means whatever government officials say it means, on a case-by-case basis.  The term “surface water” may include groundwater and “continuous flow” includes occasional flow.     These are all words which the Corps and EPA use to define waters subject to federal regulation.

Revolutionary era patriot and lawyer James Otis once said, “It is a clear truth that those who every day barter away other men’s liberty will soon care little for their own.”  We wonder what Otis would say about POTUS and WOTUS.

.Endangered Species Act — Utah prairie dog

We had six briefs, including a brief submitted by nine state governments, filed this week in the Tenth Circuit supporting our victory in People for the Ethical Treatment of Property Owners v. United States Fish & Wildlife ServiceThis demonstrates the rather extraordinary interest and support we’ve received for our position that there are limits to federal jurisdiction: here there is no demonstrable commerce in this rodent that is found only in Utah. For a description of and links to these briefs, check out this blog post. Continue reading

Appellate court to hear constitutional challenge to ESA

On June 2, we will be holding a D.C. event to discuss with lawmakers and others our landmark PETPO case that is now pending in the 10th Circuit after a Utah District Court held that federal regulation of local prairie dogs exceeds constitutional authority under the Endangered Species Act.  Coincidentally, that same day I will be attending oral argument in Austin TX, in the 5th Circuit where we are arguing that the designation of critical habitat on private land, that has no connection to the endangered dusky gopher frog, is also an unconstitutional exercise of federal authority under the ESA.

The case is Markle v U.S. Fish and Wildlife Service and involves the designation of more than 1500 acres of purportedly “potential” habitat that the government estimates could cost the landowners over $33.9 million in lost profits.  The government admits the property is not usable as habitat and may never be suitable for conservation of the species.  But the government designated the property as critical habitat in the hope that it might someday become available.  To our knowledge, this is the farthest the Fish and Wildlife Service has ever gone in setting aside private property for conservation based entirely on speculation that the property could become habitat for listed species someday in the distant future.  If allowed to continue, the federal government could designate any property as potential habitat subject to federal control.  And that is no small thing.  Land use on critical habitat is subject to a virtual veto power by the federal government.  This is a dangerous precedent that can put anyone’s property at risk of federal control thereby undermining individual liberty.  Hopefully, the appellate court will hold the line on this abuse of federal power.

FAA largely scraps merit-based testing for air traffic controllers

PLF friend Hans Bader reports on some awfully disturbing news out of the Federal Aviation Administration.  It seems the FAA has scrapped merit-based testing for air traffic controllers in lieu of diversity-based screening.

For one FAA manager feeling the pressure to promote diversity, even a dumbed-down test apparently wasn’t enough: to maximize racial diversity and ensure that almost everyone would pass, she allegedly handed out the answers in advance to make sure that no one failed. One applicant says she was given prior access to the BQ test, including the preferred answers, by a Front Line Manager at the FAA’s New York Center.

Unfortunately, this isn’t the first time public safety has taken a back seat to racial balancing. You can read the rest of Hans Bader’s article here.

Lawless Administration adopts deceptive Clean Water Act Rule

Today, the Corps of Engineers and Environmental Protection Agency issued their final rule defining “waters of the United States” subject to federal control under the Clean Water Act.  The EPA web page is here, but don’t believe everything you read.  The rule does not simply clarify existing regulation.  It completely redefines the scope of federal authority under the Act in an attempt to make an end run around those Supreme Court decisions that have expressly said these agencies have gone too far.  For the most part, our critique of the proposed rule still applies.

In 2001, the Supreme Court held in SWANCC that the Corps and EPA could not regulate isolated water bodies because that would read the term “navigable waters” right out of the Act and raise constitutional questions.  But, the agencies continued to do so.  In 2006, the Supreme Court held in Rapanos that the Corps and EPA could not regulate all tributaries with a so-called “ordinary high water mark” because that definition could not be consistently applied and extended to remote ditches, drains and sewers.  But, the agencies continued to do so.  Now, through this new rule, the Administration has adopted essentially the same definition of jurisdictional waters the Supreme Court rejected in SWANCC and Rapanos.

Moreover, the Administration deceptively argues that due to these decisions, millions of people have been denied clean water protections and that the new rule is necessary to close the regulatory gap while simultaneously claiming that the new rule is fully consistent with Supreme Court precedent.  The Administration doesn’t seem to grasp this inconsistency.  Instead, the Corps and EPA disingenuously blame the Supreme Court for their own ineptitude in clearly defining and enforcing their own Clean Water Act regulations for more than 40 years.  Now they are at it again–seeking to expand their power with even broader regulations that are insupportable under the plain language of the Clean Water Act, Supreme Court precedent, and even constitutional constraints.

Soon, PLF will test this expansive new rule in court.

How California courts are evading federal law

Today’s Daily Journal carries an op-ed by PLF attorneys Deborah La Fetra and Wen Fa on DIRECTV v. Imburgia, the latest in a long line of California court cases undermining arbitration and evading federal law. Here’s a taste:

For nearly a century, the Federal Arbitration Act has explicitly instructed courts to respect the decision of people agreeing to resolve their disputes by arbitration. California’s long history of hostility toward arbitration serves as an example of why federal legislation demanding state judicial respect for the freedom of contract is necessary. DIRECTV is the latest in a long line of anti-arbitration decisions from the California courts, demonstrating the California courts’ persistence and creativity in generating new reasons to invalidate contracts providing for arbitration of disputes.

Read the rest . . .

PLF’s Timothy Sandefur and Jennifer Thompson on property rights in California

I’m guest-hosting on KFMB AM 760 in San Diego all week between 10 and noon, and this morning I talked with PLF staff attorney Jennifer Thompson about our litigation in defense of property rights in California. We talked in particular about the Lynch case, in which the court held that a property owner is not allowed to build a project and then later challenge the constitutionality of the outrageous conditions the government demand in exchange for a permit, and also the Levin case, involving San Francisco’s extraordinary extortion of landlords. If you missed it, you can listen online here.

Unions seek exemption to union-backed minimum wage law

The Los Angeles Times is reporting that labor unions are seeking an exemption to the minimum wage rule that they helped pushed through. In a statement dripping with irony, Rusty Hicks, who heads the county Federation of Labor, explained why union-negotiated contracts should get the exemption:

“With a collective bargaining agreement, a business owner and the employees negotiate an agreement that works for them both. The agreement allows each party to prioritize what is important to them. This provision gives the parties the option, the freedom, to negotiate that agreement. And that is a good thing.”

That’s rich. Replace “collective bargaining agreement” with “employment contract” and you see the irony. It’s true that allowing workers and employers to negotiate and prioritize what is important to them is a good thing. That’s why a $15 minimum wage law —  which makes labor more expensive and less demanded and prevents workers and employers from negotiating and prioritizing what’s important to them — is a bad thing.

Reason’s Matt Welch has more.

It’s good to have friends

Many friend-of-the-court briefs have been filed supporting People for the Ethical Treatment of Property Ownerschallenge to the federal government’s unconstitutional Utah prairie dog regulation. These briefs are a reminder of how important the issue is and how unnecessary the federal regulation — and its immense burdens on individuals — is.

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Beware the EPA Jabberwocky!

Yesterday, the LA Times ran a front page article on PLF’s landmark case of Rapanos v United States.  In that case, the Supreme Court determined federal officials have no authority under the Clean Water Act to regulate all tributaries and reaffirmed that remote, isolated water bodies, including some wetlands, are off limits to federal regulation.  The court reiterated that Congress expressly recognized in the Act that the States have the “primary right and responsibility” to protect local land and water use.  Therefore, the oft-quoted claim that “60% of the Nation’s streams and millions of acres of wetlands” are unprotected due to the Rapanos decision is nonsense.  Waters the federal government can’t regulate because of statutory and constitutional constraints are regulated by the States.

Nevertheless, the Corps and EPA assert they must adopt a new rule to “clarify” the reach of the Clean Water Act.  Unfortunately, the new rule, which may be issued this week, doesn’t clarify anything other than the belief that federal officials can control virtually all waters and much of the land in the Country without federal authority.  As we noted in our blog post, The EPA Administrator is a prankster, the new rule turns the Clean Water Act on its head and introduces a series of ambiguous words that Corps and EPA officials can exploit to impose their will on private landowners throughout the Nation.

The LA Times article got me thinking about Jabberwocky; the nonsense poem written by Lewis Carroll in Through the Looking-Glass that relies on made-up words that only have meaning to the author in the inverted, dreamscape world of Wonderland.  The poem is an apt comparison to the proposed rule redefining “navigable waters” because it defines words in a way that defy common understanding.  For example,  the word “navigable” is defined to include nonnavigable.  The word “waters” is defined to include areas of mostly dry land.  The word adjacent, which normally means abutting, is defined to include neighboring which means whatever government officials say it means, on a case-by-case basis.  The term “surface water” may include groundwater and “continuous flow” includes occasional flow.     These are all words which the Corps and EPA use to define waters subject to federal regulation.  So, when you hear the new rule is necessary to protect the waters of the United States and the rule simply clarifies, but does not extend, federal jurisdiction, you can be sure you just fell down the rabbit hole into an upside down world.

Our most recent critique of the proposed new rule can be found here.

No injury = no tort remedy

[this blog post co-authored by Deborah J. La Fetra.]

Traditionally, tort law compensates those injured by the fault of others.That is, a plaintiff cannot successfully sue a defendant because he could have suffered an injury but did not. Likewise, the plaintiff cannot successfully sue if he might suffer an injury in the future. These speculative harms have no place in traditional tort law.

Enterprising tort lawyers challenge that black-letter law when they can, usually with little success. In Nevada, however, a three-judge panel of the state supreme court recently allowed a class action lawsuit to move forward that creates a free-standing claim for medical monitoring, without the plaintiffs showing any injury—or even contact with a potential harm. The case, Sadler v. PacifiCare, arose from PacifiCare’s alleged failure to establish a quality assurance program to oversee the medical providers in its network. Unfortunately, some providers under PacifiCare’s auspices used unsafe injection practices.

The plaintiffs have not become ill, nor do they claim to have suffered exposure to any contaminated blood. Nevertheless, the panel gave its imprimatur to this new, unfortunate extension of the law that will have unintended consequences that will redound to the detriment of other plaintiffs who actually have suffered injuries.  Allowing the plaintiffs’ case to move forward makes Nevada a true outlier jurisdiction; other states require at least an allegation of harmful contact. Most states allow medical monitoring only as a remedy for a manifested physical harm.

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