November 27, 2012

An alternative Barnum remedy?

By Damien M. Schiff Senior Attorney

Pacific Legal Foundation attorneys represent Barnum Timber Co. in its challenge to the Environmental Protection Agency’s listing of Redwood Creek as an impaired waterbody under the Clean Water Act.  Barnum, a family-owned company, owns timberland in northern California within Redwood Creek’s watershed.  EPA has listed the Creek as impaired by excessive sediment and temperature levels, which allegedly impair resident fish populations.  Barnum, however, has presented strong data showing that EPA is flat wrong on the science, but for some time Barnum could not even get a court to hear its claims.

Barnum originally filed suit in California superior court, only to be dismissed and and told that its only remedy lay in a suit against EPA in federal court.  Yet, shortly after filing that suit, a federal district court in San Francisco dismissed it too, ruling that Barnum had no “standing” to challenge Redwood Creek’s impaired listing.  Barnum appealed, and the Ninth Circuit reversed, holding that Barnum could sue EPA because the listing had lowered Barnum’s land values.

The Ninth Circuit’s decision has now come under attack from the legal academy.  Jerett Yan argues in the 2012 volume of the Ecology Law Quarterly that the Ninth Circuit improperly imputed harms to EPA that in fact were attributable to California.  Yan contends that the Ninth Circuit’s decision impermissibly gives the judiciary too much control over enforcement and other discretionary prerogatives of administrative agencies like EPA.  He suggests that an appropriate remedy would be for Congress to authorize entities like Barnum Timber to sue third parties like California whose regulation, triggered by EPA action, is the immediate cause of harm.

What to read next