News 2000

November 21 | October 13 | October 4 | September 27 | September 13 | September 7 | August 31 | August 19 | July 18 | June 6 | April 18 | April 10

November 21, 2000

  • On October 4, the Institute for Justice filed a case in federal district court that will impact New York property owners’ rights to receive fair notice and a hearing before the government takes their property against their will through the power of eminent domain. The lawsuit seeks to repeal portions of a New York state law that authorizes municipalities and government agencies to take private property without notifying the property’s owner of his time-limited right to appeal the purpose of, or procedures used in, the condemnation of his property. Owners who do not appeal, within 30 days, the government’s determination that their property will condemned are forever barred from challenging the constitutionality of the government’s taking. Yet, the New York law does not require the government to personally notify owners of the determination to condemn their property or of their right to appeal. IJ filed the suit on the behalf of three New York property owners who stand to lose their properties if these abuses aren’t halted. Based on IJ’s filings, Federal District Court Judge Harold Baer issued a temporary restraining order protecting the plaintiffs’ small businesses and church from being condemned or destroyed until the court hears a preliminary injunction motion the Institute filed. IJ requested the preliminary injunction on behalf of the property owners to protect their property until their lawsuit is decided, scheduled for October 12.

October 13, 2000

  • WLF Opposes EPA’s Environmental Justice Guidelines
    Washington Legal Foundation filed formal objections this week with the Environmental Protection Agency (EPA), opposing EPA’s Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits. WLF argued that the draft guidance for processing environmental justice complaints was legally flawed, procedurally improper, unworkable as a matter of policy, and that the guidance should be withdrawn. At a minimum, WLF requested that the agency hold additional public hearings on the draft guidance, because the hearings held earlier this summer shortly after the draft was published did not give the public sufficient time to analyze the guidance and provide meaningful comments. WLF focused its objections on the proposal’s faulty legal basis, namely, that "disparate impact" is sufficient to constitute discrimination under Title VI. WLF presented strong arguments based on Supreme Court decisions that only intentional discrimination is prohibited. The EPA and environmental justice activists are trying to prevent states from issuing permits to companies to locate in areas in the state where there is allegedly a disproportionate number of minorities living in the area where the company is located, even though the company complies with all federal and state pollution control laws and regulations.
  • List of Future EPA Regulations
    In response to a request from House Government Reform Subcommittee on Regulatory Affairs Chairman David McIntosh's (R-IN) office, the Environmental Protection Agency (EPA) provided a list of 88 upcoming regulatory decisions expected before President Clinton leaves office.  A copy of the list is available in PDF under the breaking news section of the National Manufacturers Association website at:

October 4, 2000

September 27, 2000

  • Ford issued its first ever “corporate citizenship report” at its May 2000 annual meeting. The report stated there was a “dilemma” between the company’s commitment to the environment and its heavy sales of sport-utility vehicles. While the report was regarded as short on specifics about the environmental impact of the company’s operations and products, Ford expects to provide more statistical data in the future.

  • Regulatory Takings Victory
On September 15, the U.S. Court of Appeals for the Fifth Circuit handed down an important regulatory takings decision in United States Fidelity & Guar. Co. v. McKeithen, No. 99-30475 (5th Cir. Sept. 15, 2000).  At issue in the case was 1995 amendments to Louisiana's Workers' Compensation Second Injury Fund ("SIF") Assessment Statute.  The SIF is a state created fund designed to socialize among all employers in the state the cost of "second injuries" to previously injured workers (e.g., a worker who previously blinded in one eye in an industrial accident who loses the other eye and thus becomes totally disabled).  Established in 1974, the fund assessed each employer in the state for a share of the cost of all second injuries during a given year.  Because collecting from all employers was an inefficient method of operating the fund, the 1974 law used workers' compensation insurers as an intermediary in the collection of the assessment.  As originally enacted, the law assessed each insurer based on the premiums written in a given policy year, and the insurer was allowed to pass through the assessment to the employer in its rate base.In 1995, after numerous insurers had ceased or substantially reduced underwriting in the state because of high costs and bad experience, the State changed the methodology for the assessment from a premium-based assessment to an assessment on the basis of benefits paid in the current year.  The net effect of the change was to shift a substantial portion of the costs of the SIF to insurers that had withdrawn from the state. Insurers sued in federal district court in Baton Rouge, but the district court upheld the statute.  The Fifth Circuit, in an opinion written by Judge Edith Jones, reversed the district court and ordered that the statute be enjoined as applied to the plaintiff insurers.  Applying Eastern Enterprises v. Apfel, the court held that the statute constituted impermissible retroactive legislation in violation of the Takings Clause.  As applied to defendants' pre-enactment workers' compensation policies, the legislation "retroactively imposes a heavy economic burden on those who could not reasonably anticipate the liability."Defendant insurers were represented by Mark F. Horning and Shannen W. Coffin of Steptoe & Johnson LLP (Co-Chair, Federalism & Sep Powers Practice Group).The opinion is available at
September 13, 2000

  • To read a brief of the U.S. Chamber of Commerce as amicus curiae in support of the petitioners in Solid Waste Agency of Northern Cook County, petitioner, v. United States Army Corps of Engineers, et. al., visit the Chamber’s Web site at
  • To read a brief for the cross-petitioners in American Trucking Associations, Inc. Chamber of Commerce of the United States, Et. Al, (Cross-Petitioners) v. Carol M. Browner, Administrator of the Environmental Protection Agency, et. al. visit the Chamber’s Web site at

September 7, 2000

  • Revitalizing Urban American: Cleaning up the Brownfields
    Federal government’s involvement in the cleanup of brownfields via the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) has been a disaster.  The states have been extremely effective in providing incentives for the landowner to clean up the site, rather than the threat of litigation from the federal government.  Superfund has impeded these efforts by onerous regulations that have spent $92 million taxpayer dollars in FY 2000.  Over $400 million has been spent without evidence of any new job creations or investment opportunities.  There is a role for federal government in cleaning up brownfields, and that is to get out of the way and let states handle it. See the report at:
  • State Court Ruling Undermines Retroactive Superfund Liability
    When the U.S. Supreme Court issues its 1998 Eastern Enterprises v. Apfel ruling on the constitutional problems with oppressive retroactive liability, many targets of hazardous waste legal actions opined that the precedent could be used to strike down similar applications of Superfund.  Success in this regard has been found in the unlikely venue of trial court in the state of Washington, where a judge has found unconstitutional a particularly egregious retroactive application of that state’s Superfund law.  The author explores the judge’s reasoning in this path-breaking decision and explains how it might be applied in the context of the federal Superfund law.  He also provides an insightful review of the Eastern Enterprises ruling which urges judges to see beyond the seeming disagreements among the Justices in the case and extract its central message, which is that a number of factors can render the retroactive application of a law unconstitutional. See for further information.
  • CIR Seeks to Extend its Morrison Victory to the Clean Water Act
    Arguing that the Clean Water Act has been given an unconstitutionally broad interpretation, the Center for Individual Rights submitted an amicus brief in the Supreme Court case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. The Court will review the U.S. Court of Appeals for the Seventh Circuit’s holding that an expansive interpretation of the Act by the Corps of Engineers falls within the federal government’s authority to regulate interstate commerce.  The disputed interpretation purports to allow the Corps to regulate even “intrastate and isolated waters” that could “be used as habitat by…migratory birds which cross state lines.” CIR argues that the Supreme court’s holding in U.S. v. Morrison – in which CIR successfully represented Tony Morrison’s challenge to the Violence against Women’s Act – governs the Solid Waste  case.  Morrison held that the federal government cannot regulate non-economic activity under the Constitution’s Commerce Clause simply because the activity has some indirect effect on interstate commerce.  Given that holding, “it would be…strange to suggest that Congress can regulate non-economic acts that have some long-range effect on the ability of birds or insects to travel in interstate commerce,”  CIR’s brief argues. CIR notes that the Corps’ interpretation would allow it to regulate even backyard bird feeders visited by migratory birds. Oral argument in Solid Waste is set for October 31. See for further information.
  • The Institute for Justice recently published “State of the Supreme Court 2000: The Justices’ Record on Individual Liberties.” Visit to view the publication.
  • Legislative update:
    S.1028 Citizens Access to Justice Act of 1999 (bill in markup on 9/14)
    Sponsor: Senator Orrin Hatch (introduced 5/13/1999)
    Latest Major Action: 5/13/1999 Referred to Senate committee
    Title: A bill to simplify and expedite access to the Federal courts for injured parties whose rights and privileges, secured by the United States Constitution, have been deprived by final actions of Federal agencies, or other government officials or entities acting under color of State law, and for other purposes. See:

    August 31, 2000

    A landowner contented that the provision of the Endangered Species Act forbidding the taking of a protected species on private land is beyond the Commerce power of Congress. The law allows the landowner to kill a red wolf only if the animal is actively engaged in killing livestock at the time, not out of general concern that it may do so in the future. The Fourth Circuit upheld the law, over a strong dissent. (Gibbs v. Babbitt)

August 19, 2000

  • Supreme Court Wrap Up
    In addition to the decisions referenced in previous updates, the U.S. Supreme Court decided four other important environmental oriented decisions, which are discussed more fully below:

    • Willowbrook, Ill. v. Olech, the court unanimously held that individuals may sue as a class of one based on the
      Equal Protection Clause when the government treats them differentlythan others without a valid reason. To read the decision, click here
    • Friends of the Earth v. Laidlaw, the court addressed standing and mootness relating to a citizen suit brought under the Clean Water Act. To read the decision, click here.
    • The court upheld Interior Secretary Bruce Babbit's authority to promulgate changes to federal grazing regulations under the Taylor Grazing Act in <U>Public Lands Council v. Babbitt To read the decision, click here.
    • Vt. Agency of Nat Res. v. U.S., the court held that a private individual cannot bring a qui tam action against a state agency under the False Claims Act. To read the decision, click here.

  • Supreme Court Preview

    Thus far, the Court has granted cert. In the following environmental

    • Solid Waste Agency of No. Cook Cty v. U.S. Army Corps of Engineers, No. 99-1178, concerns the Court's review of a 7th Circuit decision and will determine whether the Army Corps of Engineers may assert jurisdiction over isolated, intrastate waters merely because those waters may potentially serve as habitat for migratory birds. More information will follow as it becomes available, but for those interested in reading the decision below, click here.

    • American Trucking Assoc., Inc. v. U.S.No. 99-1257, concerns the Court';s review of a Federal Circuit decision based on the non-delegation doctrine invalidating the Environmental Protection Agency&#146;s National Ambient Air Quality Standards. More information will follow as it becomes available, but for those interested in reading the decision below, click here.

  • Other Interesting Decisions

    • Appalachian Power v. EPA, 208 F.3d 1015 (DC Cir. 2000) The Court restricted the EPA's authority to govern through
      guidance documents rather than formally promulgated regulations. (Along his same line, members may find testimony before a subcommittee of the House Government Reform Committee concerning regulatory agency authority held on June 14, 2000 of interest. To view transcripts of the testimony, click here.

    • States v. Knott, No. ___ (D.Mass 2000) In a rare victory for Hyde Amendment claimants, a Judge in
      the U.S. District Court for the District of Massachusetts ruled that the Environmental Protection Agency harassed a business owner by attempting to prosecute him without credible evidence.

    • NFIB v. Corps of Engineers, No. 1:00CV01404 (D.DC 6/14/00)The National Federation of Independent Business recently filed suit in the U.S. District Court for the District of Columbia alleging that the Corps of Engineers violated the Regulatory
      Flexibility Act when it replaced Nationwide Permit 26 with new wetlands activity permits because it did not consider the impact the change would have upon small businesses or evaluate less burdensome alternatives. We will monitor the progress of the suit and update members accordingly.

  • In a move which could implicate the U.S. Supreme Cour's decision in Loretto v. Teleprompter Manhattan CATV Corp.,the Massachusetts Dept. of Telecommunications recently promulgated regulations requiring residential and commercial landlords to open their buildings to competing telecommunications providers to increase tenants choices for cable television, telephone and Internet access providers.
  • The General Accounting Office released two reports which members of the practice may find interesting. One concerns EPA effectiveness, the other concerns accountability of the U.S. Forest Service.
  • The American Lung Association recently released its State of the Air 2000 report. Members may read the report by clicking here.
  • The U.S. Global Change Research Office released its draft report for comment: Climate Change Impacts on the United States:The Potential Consequences of Climate Variability and Change. Members may read the report by clicking here.
  • Greg Page writes, "Lucas does much more to protect individual owners than delineate when the state, without paying compensation, can or cannot prohibit their desired uses of protected property. The essence of Lucas is that, although it defines constitutional property with the democratic traditions that precede its particular acquisition, governments can never divest those traditions from individual owners without remitting "just compensation." To receive more details, click here.

July 18, 2000

  • For an article by Samuel R. Staley on "Reforming Zoning Laws: A Portfolio of Ideas for Forward-Looking Regulators," see PERC’s Web site at:

June 6, 2000

  • The following is from a report by Jonathan Adler published by the Reason Public Policy Institute, May 2000 titled Environmental Performance at the Bench: The EPA’s Record in Federal Court. See for more on the report.

    "All federal agencies have some share of their policy decisions challenged in court. But most federal agencies win most of their time. Federal courts generally defer to legislative agencies’ policy decisions. As a general rule, courts will only strike down a federal regulation for one of three reasons: 1)the regulation is unlawful; 2) the regulation is arbitrary and capricious or an abuse of discretion; 3) the regulation was not issued in accordance with procedural requirements.

    The Environmental Protection Agency appears to be an exception to the general rule that courts defer to agency decisions. Over the past seven years, the EPA suffered losses in the majority of cases filed in the primary court of jurisdiction for challenges to environmental regulations…

    An analysis of challenges to EPA regulations and final agency actions in the D.C. Circuit during the Clinton administration finds that the EPA wins fewer than half of its cases before the D.C. Circuit.

    • Of the 69 cases analyzed, the EPA won only 23, or one-third (33.33 percent) of those in which the court considered the merits of the challenge.
    • In over half of the cases (53.62 percent), the D.C. Circuit struck down all or a substantial portion of the challenged rule."

  • The Cato Institute recently published a report on Smart Growth at the Federal Trough: EPA’s Financing of the Anti-Sprawl Movement. To view the report, please visit

April 18, 2000

  • With election looming just a few short months away, the political branches and presidential candidates are turning their attention to private property rights and environmental issues. First, on March 16, 2000, the U.S. House of Representatives passed H.R. 2372, a major property rights bill, by a vote a 226 - 182. The bill now awaits consideration by the Senate Judiciary Committee. If enacted, the bill will make it easier for Federal Courts to address takings cases. To track the bill status and view the bill's text, click:
  • On April 8, 2000, Senator Frank Murkowski (R-AK) chided the Clinton-Gore Administration's domestic energy policies, stating he believed their refusal to open public lands for resource exploration is responsible for increasing the United States's dependence on imported energy resources and the recent surge in gasoline prices.
  • Last month, in response to litigation brought by the Natural Resources Defense Council, the Army Corps of Engineers finalized changes to its Nationwide Permit program regulations which, upon taking effect in June 2000, will make it more difficult to build near streams and lakes. For more information, click: and then select a topic from the several options listed.
  • Property rights advocates made monumental progress in the California judicial system recently according to an article published by the Law News Network in February 2000.
  • Congratulations goes to a fellow practice group member and newsletter editor Jeff Clark of Kirkland & Ellis for his work on a First Circuit case decided on March 27, 2000 concerning the Clean Air Act's preemption of automobile emissions regulations promulgated by the Commonwealth of Massachusetts. The Massachusetts regulations mirrored emission limits embodied in an agreement between automakers and the State of California pursuant to a specific California exception to the Act's express preemption of state regulation under Section 209. The Commonwealth of Massachusetts argued that its regulations fit within another exception created by Section 177 of the Act because they were identical to the California emission limits and were promulgated two years before the commencement of the model year to which they applied. The Court, however, held that the limits set under the California agreement were not "standards" for Clean Air Act purposes because they were contractual in nature, not governmental. Thus, the Massachusetts regulations were not identical to California's standards and did not qualify for the preemption exception under Section 177. The case is captioned Assoc. of Automobile Mfgs. et al v. Commissioner, Mass. Dept. of Env. Protection (No. 98-1036 and 99-2245). To read the decision, click:
  • The recently released movie Erin Brockovich highlights a now nationally prominent case concerning the tort claims of numerous plaintiffs for illnesses and deaths allegedly caused by pollution resulting from the activities of a large corporate defendant. The movie attempts to depict the history of the case and the personalities of the attorneys involved by dramatizing particular stages of the litigation. Well, at least one commentator, suggests that, in so doing, the movie presents viewers with an unrealistic perception of law and justice.

April 10, 2000

  • On March 6, 2000, The U.S. Supreme Court decided U.S. v. Locke (No. 98-1701), and its companion case, INTERTANKO v. Locke (No. 98-1706). The cases concerned the Oil Pollution Act of 1990's (OPA 90) preemptive effect upon similar, but more stringent, state regulations. Specifically, the Court examined the following two issues:
    • Whether federal statutes and regulations governing oil tanker operations, personnel qualifications and staffing, adopted in furtherance of the federal government's international treaty obligations, preempt similar, but more stringent regulations promulgated by a state agency.
    • Whether a state may deny entry to its ports or penalize vessels failing to comply with its environmental and tanker safety regulations.
  • A unanimous 9th Circuit panel, in an opinion written by Judge Diarmuid O'Scannlain, found that OPA 90 did not preempt the state regulations at issue. However, a unanimous Supreme Court reversed, holding that state regulations were preempted since the federal laws already comprehensively occupied the field of oil tanker regulation. The case presents an interesting discussion of the federal government's foreign affairs authority and a state's right to promulgate environmental regulation. The syllabus for the decision is available through the following link:
  • Members can read an article on the decision at:
  • On March 1, 2000, the United States Supreme Court heard oral argument in Public Lands Council v. Babbitt, No. 98-1991, an important case concerning the Secretary of Interior's authority under the Taylor Grazing Act, the Federal Land Policy and Management Act and the Public Rangeland Improvement Act which authorize private livestock grazing on federal lands. Specifically, the decision will determine whether current Interior Secretary Bruce Babbitt exceeded his authority under those statutes by promulgating regulations that:
    • Destroy the protection and priority accorded grazing rights under the aforementioned statutes by replacing established "grazing preferences" with variable "permitted uses";
    • Allow grazing permits to be issued to persons not "engaged in the livestock business"; and
    • Provide that the United States retains title to all structural improvements made on federal rangeland by grazing permittees.
    For more information on this case, click:
  • On April 3, 2000, the United States Supreme Court declined to review the Federal Circuit Court of Appeals' decision in the case of Good v. United States concerning the right to compensation for regulatory takings and the concept of "heavy regulation". The Court of Appeals decision upheld a U.S. Court of Federal Claims decision requiring property owners to prove the reasonableness of their investment backed expectations to use their property (in light of the regulatory climate surrounding use of the property at the time of acquisition) as well as the deprivation of all economically viable use of their property as a result of government regulation, before they may recover compensation for the taking of their property in violation of the Takings Clause of the Fifth Amendment.


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