President's weekly report — November 14, 2014
Clean Water Act
This week, we submitted comments on the Army Corps of Engineers and EPA’s proposed rule redefining the term “waters of the United States” under the Clean Water Act. The rule, if adopted, would be the largest expansion of power ever proposed by a federal agency. It would give the Federal Government regulatory power over all waters in the United States, except only a handful of water features like ornamental ponds and swimming pools. PLF’s comment letter explains how the proposed rule expands federal jurisdiction in way that is inconsistent with the Clean Water Act and precedents interpreting it.
Equality Under the Law Project
The Fifth Circuit Court of Appeals denied Abigail Fisher’s petition for rehearing en banc in Fisher v. University of Texas, involving a constitutional challenge to the University of Texas’s race-conscious admissions policy. Judge Garza filed a short dissent reiterating the points he made in his panel dissent. PLF, joined by our friends at the Center for Equal Opportunity, Reason Foundation, Project 21, and the Individual Rights Foundation had filed an amicus brief urging the full court to take the case. The case is likely making its way up to the U.S. Supreme Court.
Endangered Species Act
A court in Arizona has just ruled that the Sonoran Desert population of the bald eagle should not be listed under the Endangered Species Act. The Fish and Wildlife Service determined in 2010 that the population of the eagle did not meet the standard of a Distinct Population Segment of a species. The DPS policy requires the agency to determine (1) if the population is distinct; (2) if the population is significant; and (3), if the population is both distinct and significant, whether the population is threatened or endangered. Environmental activists had sued in Arizona District Court, arguing that the population of the Sonoran Desert eagle should be listed because it is unique. PLF attorneys, who won a challenge to remove the bald eagle from the ESA list in 2007, filed an amicus brief to argue that “uniqueness” is not a test for Distinct Population Segments. The Arizona court agreed with PLF that the ESA should not be expanded to cover every discrete population of any species. You can read more about this victory in this blog post.
What to read next
PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›