President's weekly report — March 22, 2013

March 22, 2013 | By ROB RIVETT

Environment — Victory in Decker!

The Supreme Court issued a major victory for common sense this week in Decker v. Northwest Environmental Defense Center. In a 7 – 1 decision, the Court ruled that timber companies did not have to obtain individual discharge permits for culverts and the like on forest roads used for timber harvesting. If the decision had gone the other way, there well could have been total gridlock in the timber industry as hundreds of thousands of permits could have been required. Interestingly, Justice Scalia dissented in part, arguing that it is inappropriate to defer to federal agencies’ interpretation of their own regulations.

Environment — Endangerment Finding

We filed our petition for writ of certiorari in our “Endangerment Finding” case, Pacific Legal Foundation v. Environmental Protection Agency. The endangerment finding refers to EPA’s decision that carbon dioxide emissions must be regulated under the Clean Air Act. However, we believe the law is plain: such a major regulatory decision must be submitted to the agency’s Science Advisory Board for review prior to the adoption of the final decision. The Court of Appeals disagreed and we are now asking the Supreme Court to review.

Environment — Placer Gold Mining

The Supreme Court denied a petition for writ of certiorari in The New 49ers v. United States Forest Service. This leaves the 9th Circuit decision requiring consultations under the Endangered Species Act for virtually all approvals of placer gold mine operations — even those very small operations that must be approved of automatically. This case has troubling implications for other routine permitting by federal agencies. We had filed an amicus brief.

Free Enterprise Project — Tort Reform

We filed our amicus brief in Sears v. Butler, a case that looks at allegations regarding alleged mold problems in some Sears front-loading washers. The lawyers for the plaintiffs are arguing that all purchasers of the washing machines should be included in a class, whether or not they suffered any problems. The 7th Circuit agreed, finding that it would be “efficient” to certify such a class. Our amicus brief does not agree, and urges the Supreme Court to take this case to strike down the notion that efficiency must trump justice.


Timothy Sandefur had two articles published this week. The first is on commercial speech, Returning to the True Spirit of the First Amendment, and is published in Cato’s magazine Regulation. The second, Is the PPHCA “Tax” Constitutional?, is an article on Sissel, our challenge to Obamacare. It is published in the Journal of Florida’s James Madison Institute and you can read it here (at page 40).