March 2, 2011

Yet another sign that the Obama administration really isn't "pro-business"

By Yet another sign that the Obama administration really isn't "pro-business"

Author: Brandon Middleton

Instapundit linked today to this article by James Pethokoukis, in which Pethokoukis explains why 3M president and CEO George Buckley isn't fond of the trend to label President Obama as "pro-business":

Buckley has good reason to wonder aloud about Obama’s pre-election year conversion from nemesis to friend of Corporate America. He surely sees Team Obama failing to make obvious moves to boost U.S. global economic competitiveness. The president still supports the new healthcare and financial reform laws. The president still wants to raise taxes. And the president gave the stiff-arm to his own debt panel. So there you have it, the axis of economic evil – taxes, regulation and government spending.

You can add the Department of Justice to the reasons why the Obama administration is seen as less than friendly to business.  After years of supporting a private company's fight against excessive environmental litigation, including numerous helpful filings under both presidents Clinton and Bush II, last week DOJ did an about-face and opposed the private company's request for Supreme Court review of a costly and ill-conceived decision from the Ninth Circuit.

The case is Kaiser Eagle Mountain, Inc., v. National Parks & Conservation Association.  More than two decades ago, Kaiser approached the Bureau of Land Management with a novel idea–Kaiser would give some of its private land to the government, which would allow federal agencies to better manage environmentally sensitive lands, including areas designated as critical habitat for the threatened desert tortoise near Joshua Tree National Park.  In exchange, Kaiser would receive a cash payment from BLM as well as a portion of mostly mountainous and abandoned land that the government owned in the same area.  With the new parcels from the land exchange and increased access to contiguous land, Kaiser would be able to address a critical landfill capacity shortfall in Southern California by developing what expert scientists and engineers from major California universities described as "one of the world's safest landfills and a model for others to emulate."

Like so many good ideas in California, Kaiser's proposal was stalled by environmental protests, and it wasn't until 1997 that the federal government approved the land exchange.  Undaunted, the National Parks Conservation Association and Donna and Laurence Charpied (local residents who are not strangers to environmental litigation) filed separate lawsuits in federal court to prevent the land exchange from occurring.  And their lawsuits were successful, such that the Ninth Circuit invalidated the land exchange in a controversial decision in 2009.

Throughout this ordeal, DOJ (representing the Bureau of Land Management) has sided with Kaiser.  But now that Kaiser (joined by Pacific Legal Foundation and others as amici) has asked the Supreme Court to review the Ninth Circuit's decision, DOJ has changed its mind.

In a brief filed with the Court on February 25, DOJ formally opposed Kaiser's request for Supreme Court review.  According to DOJ, while the government apparently "agrees" with Kaiser that the Ninth Circuit got it wrong, Supreme Court review is nonetheless "not warranted" because the Ninth Circuit's decision is "fact-bound and does not squarely conflict" with any decisions from the Supreme Court or any other court of appeals.

DOJ's position is incorrect.  As Kaiser explained in its petition for review to the Supreme Court, and PLF explained in its amicus brief in support of Kaiser's petition, the Ninth Circuit committed several legal errors which conflict with other circuits, and its decision did not depend upon a complex set of factual circumstances.

Equally important is the message the Obama administration has sent to private companies trying to ride out the storm of stifling environmental litigation.  For years, Kaiser and the Bureau of Land Management had joined together to address Southern California's critical landfill shortage and had stood united in a fight against a typical environmental lawsuit.  But now DOJ and the Bureau of Land Management have turned their backs to Kaiser, which has spent more than $50 million in its attempt to get this project off the ground and away from the courts.  At this point, then, how private companies should approach and work cooperatively with government agencies is anything but clear.

Of course, the Supreme Court could still accept Kaiser's request and review the Ninth Circuit's decision.  But DOJ's opposition to Supreme Court review is certainly unwelcome news.

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