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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Markle v. U.S. Fish and Wildlife Service

In 2012, government bureaucrats designated more than 1,500 acres of privately owned land in Louisiana as a “critical habitat” for the federally-protected dusky gopher frog. Regardless of the fact the frog neither lives anywhere in the state nor could live there, the critical habitat designation makes the land off-limits for all of the property owners including Ed Poitevent and his business, Markle Interests, and the Weyerhaeuser Company. On January 22, 2018, the U.S. Supreme Court announced it will hear a challenge to this blatant abuse of the Endangered Species Act. PLF represents the Poitevent family and related businesses, and will represent their interests before the Court.

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