President's weekly report — December 13, 2013
Environment — EPA’s War on Coal
We filed our amicus brief in Mingo Logan Coal Co. v. EPA. Our blog post about the case is here. In this case, the Corps of Engineers approved a wetlands fill permit for a coal mine. While it didn’t like the permit, EPA declined to issue a veto. Several years later, after the mine had invested millions of dollars and started up operations (and a new administration came into power) EPA vetoed the permit, in order to force the mine to shut down. The petitioner seeks Supreme Court review of a D.C. Circuit opinion which held that the Clean Water Act authorizes EPA to “veto” duly issued Section 404 permits literally “whenever” the agency wants, notwithstanding the permit holder’s compliance with the permit or his investment in the project. Our brief highlights the constitutional pitfalls of the appellate court’s opinion: It conflicts with the presumption against retroactivity, upsets settled expectations in violation of due process, fosters a culture of political targeting of disfavored dischargers, and risks taking private property without just compensation.
Environment — The Frog that Isn’t There
We filed our motion for summary judgment in Markle Interests, LLC v. U.S. Fish & Wildlife Service. This is the case about the scheme by the Fish and Wildlife Service to designate critical habitat in Tammany Parish, Louisiana, for the Dusky Gopher Frog — even though the frog is not found anywhere in the state of Louisiana and the affected property is not suitable for frog habitat.
Coastal Land Rights Project — Another unreasonable exaction demand from the California Coastal Commission
On Wednesday, PLF attorneys gave oral argument in the California Court of Appeal in SDS Family Trust v. California Coastal Commission (4-1463). As described in our blog, this is the case where the Coastal Commission is demanding a mile-long beachfront trail in exchange for a permit to repair a 135 year-old home and hook it up to a new well and septic system. We don’t see the connection between the home repairs and the demand for a trail, and we’re hoping the court agrees.
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 … ›