Is the Constitution a paradox?

In defending the constitutionality of the Utah prairie dog regulation, the government makes a paradoxical claim. Conceding that federal intrusions into areas of traditional state authority are unconstitutional, the government nonetheless argues that the Necessary and Proper Clause allows the … Continue reading

Watch Ted Hadzi-Antich’s Testimony on EPA Accountability

UPDATE: View Ted Hadzi-Antich’s testimony on EPA accountabiliy during a hearing entitled, “Oversight of Scientific Advisory Panels and Processes at the Environmental Protection Agency.” The panel discussion begins on May 20th, at 9:30 AM EDT.

I’ve been invited to testify next week before the United States Senate Committee on Environment and Public Works (Subcommittee on Superfund, Waste Management, and Regulatory Oversight) regarding ways in which EPA is violating the statutory requirement to obtain peer review of regulatory proposals from the Science Advisory Board.

In 2009, when EPA issued its first regulation governing greenhouse gas emissions, it failed to submit the regulatory proposal to the Board.  Several subsequent greenhouse gas emissions standards went down the same wrong path.  Those EPA failures to obtain peer review of the science underlying the greenhouse gas regulations were bald statutory violations, so PLF sued EPA to enforce the peer review requirements.  Look here for more information regarding our challenge to the greenhouse gas emissions standards for cars, and here for trucks,  It looks like Congress is paying attention to these case.

Upcoming PLF-Heritage public event on unconstitutional “Waters of the U.S.” rule

On Thursday, Pacific Legal Foundation and The Heritage Foundation are co-sponsoring a panel discussion on a draft regulation that would vastly expand the U.S. Environmental Protection Agency’s and U.S. Army Corps of Engineers’ jurisdiction to regulate the nation’s water and … Continue reading

Is Chief Justice Roberts anti-environment?

To honor Chief Justice Robert’s first decade on the Supreme Court — more like castigate him — the Constitutional Accountability Center has released a series of papers on the court’s jurisprudence. The most recent of which addresses the court’s environmental … Continue reading

Congressmen at joint hearing express concern about “waters of the US” rule

As previewed here a few days ago, the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee conducted a joint congressional hearing yesterday to consider a proposed “waters of the United States” regulation by the federal … Continue reading

Oral argument in PLF’s challenge to EPA’s mobile source greenhouse gas rules held on January 9, 2015

On Friday, January 9, 2015, the D.C. Circuit heard our challenges to the greenhouse gas emissions standards for new trucks and cars.  The challenges were based on EPA’s failure to submit to the Science Advisory Board for peer review the Truck Rule and the separate Car Rule limiting greenhouse gas emissions.  We argued that submittal to the Board is a nondiscretionary statutory mandate applicable to all EPA rules, and that EPA’s failure to comply with the mandate requires the Truck Rule and Car Rule to be remanded and vacated, so that the Agency can reopen the administrative record to seek review from the Board.

The three-judge panel of Tatel, Ginsburg, and Edwards did not concentrate on the substantive issue of whether EPA failed to comply with the statutory requirement.  Rather, they spent the bulk of the hearing asking questions regarding whether the Petitioners had standing to bring the actions.  Standing is a Constitutional requirement, which forbids federal courts from hearing cases unless there is a bona fide controversy between parties to a lawsuit.  The purpose of the standing requirement is to ensure that the courts do not engage in resolving philosophical or abstract questions.

For the purposes of our cases, the standing requirement has three components: (1) the petitioners must be injured-in-fact by the Truck Rule or Car Rule, as the case may be; (2) the injuries must be caused by the rules; and (3) the Court is able to grant relief that will remove or reduce the injuries.  It is difficult to predict how any particular court will decide any pending issue, but the D.C. Circuit panel seemed to side with us on the injury-in-fact and causation issues, concentrating most of their questions on the redressability issue.  It comes down to this: whether vacating and remanding the EPA Truck Rule and Car Rule will help to ameliorate the injuries in light of similar California rules and the federal fuel economy standards promulgated by the National Highway Traffic Safety Administration.  Citing Supreme Court precedent, we argued that the Petitioners’ injuries are redressable because a favorable decision would remove at least one regulatory cause of the injuries.  There is no requirement that all causes of the injury be removed.

If the panel rules in our favor on the standing question, it will be required to address the substantive issue of whether EPA’s violation of the submittal requirement merits remand and vacatur of the two rules.  We expect a decision before the end of the year.

 

The Wall Street Journal publishes PLF op-ed on illegal draft rule

The U.S. EPA and Army Corps of Engineers are attempting an unprecedented — and unconstitutional — power grab to extend the Clean Water Act (CWA) to cover “virtually any wet … spot in the country, including ditches, drains, seasonal puddle-like depressions, intermittent … Continue reading

PLF’s Jonathan Wood on Stossel tonight, talking prairie dog win

Fox Business Network’s John Stossel devotes his program tonight (at 9pm Eastern) to the “Control Freaks” in government. I join Stossel to discuss PLF’s recent victory in the prairie dog case, on behalf of People for the Ethical Treatment of … Continue reading