Should Congress step back and let the courts handle the WOTUS rule?

Liberty Blog readers know that the “Waters of the United States” (WOTUS) rule issued earlier this summer is not only a brazen power grab by the U.S. EPA and Army Corps of Engineers that will create additional costs, risks, and confusion for ordinary property owners, but that it is also blatantly illegal. Last week, as Reed Hopper’s post explained, a federal district court in North Dakota enjoined EPA from enforcing the rule.  The court held that it is likely that the state challengers will prevail in establishing that the “exceptionally expansive” WOTUS rule is illegal, that an injunction is necessary to prevent their irreparable harm, and that the balance of equities is with the states.

That’s good news for our separate lawsuit in another court in the same judicial circuit, as well as for other lawsuits challenged the rule elsewhere in the nation, in part because the reasoning of the judge in North Dakota is persuasive. And if the injunction holds, every landowner across the United States will have reason to celebrate. So should Congress suspend its action on the rule? Continue reading

Orwellian language in the Clean Water Act

Recent press coverage of PLF’s challenge to the compliance order that Andy Johnson received from the EPA has highlighted some of the Orwellian language in the Clean Water Act. As you’ll recall, EPA is threatening Andy with tens of millions of dollars in fines for constructing an environmentally-beneficial stock pond on his private property. Some of the reports have noted that EPA contends Andy has discharged “pollutants” into the stream that crosses his property. Anyone reading that might be alarmed, because they’re going to assume EPA is using the word “pollutant” for its ordinary meaning. But it isn’t.

When most of us think of a “pollutant,” we think of toxic chemicals, like lead and mercury. Given recent events, the first thing that springs to mind is probably EPA’s accidental spill into the Animas River.

But when EPA says property owners like Andy have discharged a “pollutant,” they’re not using that term like you and I would. They’re using its technical meaning from the Clean Water Act. Under that statute, pretty much anything placed in water is a “pollutant.” In Andy’s case, EPA is calling the dirt and rocks that he used to make his dam a “pollutant,” even though it won’t mix with the water or contaminate it in any way. Continue reading

PLF’s Timothy Sandefur talks First Amendment and gov’t unions

I talked this morning with Paul Molloy on Freedom Works about the First Amendment, government unions, and the Friedrichs case. You can listen online here.

Monday: Watch Andy Johnson on Fox Business Network — and read about him in The Washington Times

In an astonishing display of arrogance and illegality, the EPA is threatening literally to destroy a small farmer in Wyoming for the “offense” of building an environmentally beneficial stock pond on his own land. Continue reading

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.