Author: Brandon Middleton
Nearly twenty years ago, an Ontario, California company (Kaiser Ventures) proposed the development of a large landfill that would help to address Southern California's critical need for landfill space. But Kaiser didn't just propose an ordinary landfill — instead, it planned on completing the first landfill that would comply with stringent Environmental Protection Agency guidelines. Under the proposal, Kaiser would have given up some of its land in order to create better habitat conditions for the desert pupfish and desert tortoise, species that are listed under the Endangered Species Act. Kaiser's plan appeared to be a no-brainer and, as several scientists and engineers from major California universities concluded,
the designers have done essentially all that is humanly possible to make this a safe landfill that will be protective of … the underlying and surrounding environment. Given the favorable site conditions, sophisticated waste containment systems, and elaborate monitoring systems, the proposed Eagle Mountain Landfill could well become one of the world's safest landfills and a model for others to emulate.
Two decades later, however, these benefits and the approval of the project by federal agencies apparently weren't enough for the Ninth Circuit, which in November prevented Kaiser's landfill project from going forward. The Ninth Circuit's decision is odd not only because it sets aside a beneficial project that went through twenty years of negotiations and litigation, but also because it appears that the federal judiciary went out of its way to criticize Kaiser for seeking a return for its investment in the landfill project.
This creates an absurd precedent. Companies that wish to accomplish public goals like landfill development won't be able to honestly acknowledge their interests and objectives in a public project. Judge Trott recognized as much in his dissenting opinion, asking "What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool's errand."
Judge Trott also rightly pointed out that there is nothing wrong about a private company benefitting from a public project:
Of course Kaiser has its own goals it hopes to accomplish from this project, and of course it hopes to make a profit, but it seems blindingly apparent that its goals dovetail with the public's need for a landfill, and especially a landfill such as this that not only meets and far exceeds our laudable environmental expectations, but greatly enhances, by the acquisition of 2,846 acres, contiguous federal land that protects endangered species living on it.
We agree with Judge Trott, and that is why Pacific Legal Foundation has submitted an amicus curiae brief (available here) to the Ninth Circuit asking the court to revisit its ill-founded decision. As I wrote in the brief,
Judge Trott’s points are appropriate and relevant to Kaiser and all private entities that wish to work cooperatively with federal agencies. Navigating through the administrative state is difficult enough, especially when the voyage is fraught with the uncertain specter of litigation. At a certain point, however, the current becomes too strong and a company will choose to go no further in the pursuit of a public objective.
Let's hope the Ninth Circuit grants our request, because if the Ninth Circuit's decision is not reconsidered, it will likely be used in other litigation as precedent, leading regulated entities (again in the words of Judge Trott) to grow "weary . . . and throw in the towel, thwarted and defeated not by substance, but by interminable process."