President's weekly report — February 28, 2014

February 28, 2014 | By ROB RIVETT

Water Rights — The Public Trust Doctrine and The BlobThe Blob (1958) Poster

In 1958 American audiences first saw Steve McQueen as a teenager trying to save his town from The Blob, the ever-expanding amoeba-like alien monster that threatened to engulf everything in its path.  This week, almost fifty-six years later, our own Damien Schiff filed this amicus brief in Environmental Law Foundation v. State Water Resources Control Board in order to save groundwater from the ever-expanding public trust doctrine.  First conceived as a doctrine to protect the public’s right to navigable waterways for fishing and commerce, the doctrine has expanded in recent decades well beyond its original scope to limit the use of navigable and other surface waters in order to promote recreation and ecological values.  Now, there is an attempt to expand the trust still further, to cover groundwater resources.  Some scholars already think the public trust doctrine has expanded well beyond its original common-law origins and this would only exacerbate the matter, and lead to a destruction of private rights in groundwater.  Will the blob be stopped?  That’s up to the courts.

Free Enterprise Project — Tort Reform

Speaking of blobs, the Supreme Court denied cert this week in Sears v. Butler and Whirlpool v. Glazer, the moldy-washer cases, where enterprising plaintiffs lawyers are bringing a class action lawsuit against the manufacturers of front-load washing machines for alleged mold problems.  The difficulty here, as explained in our blog, is that the class includes all owners of the washers, including many who never had any mold problems.  Now these cases will eventually wind up in trial court where the class-action attorneys will no doubt angle for a settlement that gives customers a fake coupon and a very real check for the lawyers.  We had filed this amicus brief supporting the manufacturers.

Endangered Species Act — Eureka Valley plants

The Fish & Wildlife Service announced plans to delist  Eureka Valley dunegrass and Eureka Valley evening primrose, two plants that do not belong on the list of endangered species.  As explained in our blog, these plants were precipitously listed and it’s taken years plus litigation filed by PLF to get the Service to move these plants off the list so the Service can better target its resources to where they are actually needed.

Cap and Trade

We filed our notice of appeal this week in Morningstar Packing Company v. California Air Resources Board, our challenge to California’s greenhouse gas cap-and-trade program.