Category Archives: Legal Matters

EPA Rolls Back Obama-Era Regulations on Clean Water

Previous administration expanded oversight to protect water quality from industrial pollution; Trump administration promised to correct overreach.

President Trump’s administration has rescinded an Obama-era policy that expanded federal oversight and the threat of steep fines for polluting the country’s smaller waterways, furthering his deregulatory efforts in the 14 months that remain before the next election.

Environmental Protection Agency Administrator Andrew Wheeler on Thursday signed a final rule that limits the scope of federal clean-water regulations in an effort to clear up confusion for landowners whose property sits near water sources that feed into the country’s network of major rivers.

The Obama administration in 2015 had expanded federal oversight upstream, it said, to better protect wildlife and the country’s drinking-water supply from industrial runoff and pollution. Mr. Wheeler called that expansion an overreach, saying it grew to cover dry land in some cases.

Farmers, property developers, chemical manufacturers and oil-and-gas producers—some of whom are key voter groups for the 2020 election—have voiced opposition to it, with many saying it overreached by intruding on property owners’ rights.

Court battles following the Obama-era rule have led to fractured rules across the country. Amid the legal challenges, the regulation is in place only in 22 states, though the Trump administration’s decision could spark its own series of court fights.

The rule finalized on Thursday restores regulatory text that existed before the 2015 rule. Property that is no longer covered by the 1972 Clean Water Act remains protected by state rules. Major waterways, such as most rivers and lakes, were already under protection of the Clean Water Act and still will be after the rollback.

“Our revised and more precise definition will mean that farmers, property owners and businesses will spend less time and money determining whether they need a federal permit,” Mr. Wheeler said.

Critics of the reversal on Thursday warned that it will jeopardize citizens’ health and generate environmental cleanup costs paid for by taxpayers. Rep. Grace Napolitano (D., Calif.), the chairwoman of the House Transportation and Infrastructure Subcommittee on Water Resources and Environment that oversees the EPA Clean Water Act, called the move the “latest evidence of the president’s utter disregard and contempt for science.”

“Winners are corporations and polluters. Losers are families, farmers, and taxpayers,” she said in a statement.

President Trump has long promised to roll back environmental regulations he considers too restrictive. At a press conference on Thursday, Mr. Wheeler said the 2015 rule “was at the top of the list” of regulations that the president aimed to eliminate. Soon after his election, President Trump directed EPA officials to work on restoring earlier rules.

The Clean Water Act’s reach has expanded over time, including under the 2015 rule, to smaller ponds, tributaries and streams that flow only after heavy rains, Mr. Wheeler said. The expansion has meant that more landowners need to apply for permits or face steep fines.

“As the scope expands, so too does Washington’s power over private property,” Mr. Wheeler said on Thursday.

Office of Management and Budget acting Director Russ Vought said the move is part of the administration’s “effort to remove regulations that put absurd government standards on the American people.”

In recent weeks the administration has been strongly considering isolating a challenge to California authority from the rest of its new vehicle-efficiency rules. In June, EPA finalized climate rules for power plants without revising its standards for certain reviews of those plants—changes it once considered a linchpin of the policy but then promised would have to come later.

The Obama revisions gave the federal government oversight of some ditches and shallow wetlands that could carry pollution downstream, which the Obama administration estimated would improve drinking water for more than 100 million Americans.

But since that rule’s introduction, critics said it intruded on property owners’ rights and impeded economic growth.

National Association of Home Builders Chief Legal Officer James Rizzo said Thursday that the eased regulations come at an important time when the country faces a shortage of affordable housing. Roughly 25% of every dollar spent on a new U.S. home accounts for regulatory-compliance costs, he said.

“The old water rule, which sought to regulate dry land, was confusing and counterproductive,” said Jay Timmons, leader of the National Association of Manufacturers, which has been a major participant in industry’s legal challenges.

Wall Street Journal Article by  Katy Derek and Timothy Puko

 

 

 

 

Washington AG Ferguson sues EPA for accepting Washington State Water Quality Standards

Editorial: It’s hard to believe, but state officials rejected their own water standards

The U.S. Environmental Protection Agency has agreed that a state water quality plan crafted three years ago is acceptable — reversing its previous ruling.

You would think that would be good news.

After all, state officials were discouraged when the Obama-era EPA dismissed most of the state’s proposal in 2016, forcing Washington to adopt several federal clean-water standards that many stakeholders considered impossible to meet with current technology. But instead, Washington state democratic leaders are now blasting EPA for changing course.

Washington State Attorney General Bob Ferguson has filed a lawsuit challenging the change, claiming it is in violation of the Clean Water Act. Ferguson now has filed 39 lawsuits against the Trump Administration. Continue reading

Reform the Endangered Species Act by respecting property rights

The Endangered Species Act (ESA) is the nation’s most popular and powerful environmental law. There has been much discussion (and disagreement) over whether the law is a success or failure. On the one hand, almost no protected species have gone extinct since the ESA was enacted. On the other hand, equally few species have fully recovered. In fact, less than 3% of protected species have achieved recovery.

So why have so few animals recovered under the ESA? Too little regard for property rights.

By respecting property rights more, this 45-year-old law can better serve landowners and wildlife advocates alike.

The ESA imposes burdensome regulations on property owners whose land provides habitat for rare species and threatens massive fines or criminal prosecution for many ordinary land-use activities. Instead of incentivizing landowners to help recover an endangered species, the ESA punishes them for accommodating species. According to scholars across the political spectrum, this encourages landowners to preemptively destroy habitat when we should be encouraging habitat restoration.

To understand how the ESA creates these perverse incentives, we must understand what happens when a species is listed under the Act.

Continue reading

Widlife Corridors Conservation Act

THE WILDLIFE CORRIDORS CONSERVATION ACT – What You Need to Know

The 2019 Wildlife Corridors Conservation Act.(WCCA) is perhaps the most significant attack on private property rights in decades, perhaps ever.  A simple look at the list of sponsors of the proposed legislation provides plenty of warning about what this new law portends.

The WCCA was  introduced in Congress in May 2019. In the Senate, the bill is being led by Sen. Tom Udall (D-NM), and was cosponsored by Richard Blumenthal (D-CT), Cory Booker (D- NJ), Kamala Harris (D-CA), Dianne Feinstein (D-CA), Jeff Merkley (D-OR), Bernie Sanders (D-VT), Jon Tester (D-MT), Sheldon Whitehouse (D-RI), and Ron Wyden (D-OR).  The bill was introduced in the House of Representatives by Congressmen  Don Beyer  (D-VA) and Vern Buchanan (R-FL).

REWILDING advocates and their minions in Congress  are ecstatic over what this “ACT” will lead to once it is enacted.  Don’t be fooled folks! This legislation doesn’t SAVE wildlife!  Non-endangered species such as grizzly bears and wolves don’t need your private property or more Federal land to survive. Continue reading

Clean Water Act Violation Conviction Vacated

July 10, 2019: Today the Ninth Circuit Court of Appeals vacated the conviction of Navy veteran Joe Robertson, who was sentenced to 18 months in prison and ordered to pay $130,000 in fines after he dug fire-fighting ponds near his home in Montana. Sadly, Joe passed away in March, but his wife, Carri Robertson, continued his legal battle.

“We are very pleased that the Ninth Circuit agreed that Joe’s convictions should be vacated and very pleased for Carri, who will no longer have a $130,000 federal judgment hanging over her head,” said Tony Francois, a senior attorney at Pacific Legal Foundation. “It has been an honor to represent Joe and now to be able to complete his vindication on behalf of his wife, Carri.”

Federal regulators said that Robertson polluted a “navigable water” — a small ditch with a trickle of water — when he dug the ponds. The Environmental Protection Agency said the ditch was a federally protected waterway under the Clean Water Act and required a federal permit — even though his home is 40 miles from the nearest navigable waterway.

In April, the U.S. Supreme Court granted Joe Robertson’s petition to review his Clean Water Act convictions, and immediately vacated the Ninth Circuit’s judgment in the case and sent it back to the Ninth Circuit for further review.

Pacific Legal Foundation Press Release

Final Resolution Louisana Dusky Gopher Frog Property Rights Case

New Orleans; July 3, 2019:Today, the U.S. District Court for the Eastern District of Louisiana ruled that Louisiana property owners Edward Poitevent and his family, along with Weyerhaeuser Co., are the winners in a long-running national battle over property rights and the reach of the Endangered Species Act.

The plaintiffs’ victory represents the ultimate resolution of a case that reached its climax in November with the U.S. Supreme Court’s unanimous rulingin Weyerhaeuser Co. v. U.S. Fish and Wildlife Service in favor of private property rights.

Today’s settlement marks the complete capitulation of the U.S. Fish and Wildlife Service and invalidates its wrongful 2012 decision to designate the family landowners’ and Weyerhaeuser Co.’s property as critical habitat for the endangered dusky gopher frog, a species that did not even live on their property. Continue reading

Conservatives are Nudging the Supreme Court to Dismantle Affordable Housing Policy

When it comes to conservatives and the U.S. Supreme Court, abortion and labor rights are often considered among their prime targets. Brett Kavanaugh’s ascension to the court last fall, though, opened the road for a host of other challenges for which conservatives have quietly been laying the groundwork for years. This month, the Pacific Legal Foundation, a conservative law firm based in California, made moves on one of those fronts, asking the Supreme Court to take up a case challenging the constitutionality of inclusionary zoning — a popular tool cities and states employ to increase affordable housing and promote residential integration.

Inclusionary zoning generally works by requiring real estate developers to reserve a certain number of units in new housing complexes for tenants who live on more modest incomes; some jurisdictions also allow developers to alternatively pay a fee so the city can construct more affordable housing elsewhere. Conservatives argue that the policy effectively violates a provision of the Fifth Amendment that says private property cannot be taken without just compensation. Continue reading