June 27, 2014

Just more government overreaching

By M. Reed Hopper Senior Attorney

Earlier in the week, my colleague reviewed the Supreme Court slap down of the EPA in the Utility Air case for its expansive interpretation of the Clean Air Act that the Court declared would “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.”  According to the High Court, sudden and vast interpretations of long-standing laws are unreasonable and to be looked at with skepticism.  This is how the Court put it:

EPA’s interpretation is also unreasonable because it would bring about an
enormous and transformative expansion in EPA’s regulatory authority without
clear congressional authorization. When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” Brown & Williamson, 529 U.S., at 159, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.” … The power to require permits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide falls comfortably within the class of authorizations that we have been reluctant to read into ambiguous statutory text.

We couldn’t agree more.  Unfortunately, such interpretations of the law are becoming standard practice for this administration.  Exhibit A is the U.S. Fish and Wildlife Service’s vast interpretation of the Endangered Species Act to regulate nonhabitat as “critical habitat.”  You read that right.  The Service designated over 1500 acres of private land in Louisiana as “critical habitat” although the land does not support the species.  The land simply does not contain the physical and biological features the species needs to survive.  Instead, the Service maintains that this land would be essential to the conservation of the dusky gopher frog if it ever did contain the features the frog needs to survive.

Talk about an “enormous and transformative expansion” of agency authority!  Under this interpretation, the Service could designate any area in the country as critical habitat in the hope that the area may someday become useful habitat for a listed species.  We are challenging this government overreach in Markle v. U.S. Fish and Wildlife Service.  Yesterday, we filed a notice to the court advising it of this new supreme court precedent.

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Weyerhaeuser/Markle v. U.S. Fish and Wildlife Service

As a child, Edward Poitevent’s family cut down Christmas trees on their lumber-rich land in Louisiana, and one day he’d like to leave the property to his own children. But federal bureaucrats jeopardized his legacy when they declared nearly 1,500 acres of his family’s private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. Represented by PLF, Edward sued and on October 1st, 2018, he will join another affected property owner, Weyerhaeuser Company, at the U.S. Supreme Court to defend their constitutionally protected property rights. Oral argument held at U.S. Supreme Court on October 1, 2018.

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