July 13, 2009

the hidden costs of environmental litigation

By the hidden costs of environmental litigation

Author: Brandon Middleton

As California's economic troubles continue, more and more people are waking up to the hidden costs that accompany environmental litigation. Last week Chapman University presidential fellow Joel Kotkin noted that "[i]n California today, everyone who makes a buck in the private sector–from developers and manufacturers to energy producers and farmers–cringes in fear of draconian regulations in the name of protecting the environment." (h/t: Fox & Hounds Daily) He aptly described the current crisis in the Central Valley:

Large swaths of this area are being de-developed back to desert–due less to a mild drought than to regulations designed to save obscure fish species in the state's delta. Over 450,000 acres have already been allowed to go fallow. Nearly 30,000 agriculture jobs–held mostly by Latinos–were lost in the month of May alone. Unemployment, which is at a 17% rate across the Valley, reaches upward of 40% in some towns such as Mendota.

Pacific Legal Foundation is keenly aware of how environmental statutes like the Clean Water Act and Endangered Species Act put a stranglehold on economic progress. While there are many potential solutions to this problem, PLF is one of the few organizations that is fighting this battle where it matters: in the courts.

For example, PLF has urged the Ninth Circuit to affirm federal environmental permits for the City of Redding's Stillwater Business Park. In its amicus curiae brief (available here), PLF requested the court to closely examine the consequences of accepting the environmental plaintiff's arguments that the business park project should not go forward. Of particular concern in Butte Environmental Council v. Corps of Engineers is the fact that the City of Redding has gone through years of negotiations for a Clean Water Act Section 404 permit, and yet still faces questions as to whether the project is environmentally sound:

It is difficult enough for “regulated entities . . . to feel their way [through the Section 404 permitting process] on a case-by-case basis.” Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring).  Overturning the Government’s approval of the Stillwater Business Park would add even further confusion and uncertainty to the regulated public’s understanding of what is required by the Clean Water Act. Given the regulatory uncertainty that would result from halting the City of Redding’s development project, the prohibitive costs of the Clean Water Act, and the extensive analyses conducted by the Corps, the district court’s conclusion that the Corps adequately considered the alternatives to the Stillwater Business Park site should be affirmed.

The Ninth Circuit's decision in Butte Environmental Council is pending.

By reminding the courts of the true costs of environmental regulation and litigation, Pacific Legal Foundation furthers its mission to "promote sensible environmental policies that respect individual freedom and put people first." We are at the forefront of ensuring that liberty does not take a back seat to "environmentalism at all costs."

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