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News
2001 |
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Both the Bush Administration and Congress have developed
multipollutant proposals. The Environmental Protection Agency's
(EPA) proposal would require electric generators to reduce
emissions, including a 75% reduction in nitrous oxide emissions
by 2012, an 80% reduction in sulfur dioxide emissions by
2010, and an 80% reduction in mercury emissions by 2012.
Senator Jeffords (I-VT) introduced a bill, S. 556, which
would require the same reductions, however, by 2006. His
bill also would cap CO2 emissions.
Text of S. 556: http://thomas.loc.gov/cgi-bin/query/z?c107:S.556:
Co-sponsors of S. 556: http://thomas.loc.gov/cgi-bin/bdquery/z?d107:SN00556:@@@P
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Representative Gilmor (R-OH) recently introduced
legislation, H.R. 2869, which would provide some relief for
small businesses under CERCLA. Another important facet of
the legislation is to help promote the cleanup of brownfields
defined in the law "as real property, the expansion,
redevelopment, or reuse of which is complicated by the presence
or potential
resence of a hazardous substance or pollutant." One of
the approaches to achieve this objective is to award grants
to states and Indian tribes to
create response programs to deal with brownfields.
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New England Legal Foundation provided a supporting role
in the recent Palazzolo v. Rhode Island decision
by submitting an amicus brief on behalf of Louise and Frederick
Williams, who have had their efforts to build a retirement
home in Rhode Island stymied by wetlands regulations. Palazzolo
prevailed at the United States Supreme Court on a majority
of the issues submitted, including the two issues briefed
by NELF (1) that property owners should be able to
challenge anti-development regulations passed before they
purchased the property and (2) that property owners
regulatory takings claims become ripe whenever the extent
of development permitted by the agency becomes apparent.
NELF filed an amicus brief in its own name in a similar
case, Morgenstern v. Town of Rye, urging the New
Hampshire Supreme Court to grant the property owner the
right to challenge a zoning decision prohibiting any development
on a non-conforming residential lot. The New Hampshire Supreme
Court recently set a September 19, 2001, argument date.
- The U.S. Supreme announced it will hear arguments next term
in the case of Tahoe-Sierra Preservation Council v. Tahoe
Regional Planning Agency, in which Pacific Legal Foundation
has submitted friend of the court briefs on appeal. The Tahoe
Regional Planning Agency has imposed a back-to-back series
of development moratoria on many properties in the Lake Tahoe
area, forcing people to put on indefinite hold their plans
to build vacation homes and other projects. See: http://www.pacificlegal.org.
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In the Spring 2001 Harvard Journal of Law
& Public Policy, Jonathan Adler has written a piece
on "Free & Green: A New Approach to Environmental
Protection." In summary:
This article seeks to outline an alternative
approach to environmental policy, one based on market institutions
and property rights instead of central planning and bureaucratic
control. In principle, this entails nothing less than a complete
reorientation of existing environmental policy. The aim is
both to improve environmental protection and to lessen the
costs-economic and otherwise. It seeks to enhance environmental
protection without sacrificing individual rights or economic
liberty, to safeguard environmental values without expanding
government control of Americans' lives, and to find solutions
grounded in market institutions, not regulatory bureaucracies
.[T]he
failure of existing environmental strategies is the inevitable
result of an outlook that views governmental regulation as
the proper policy response to each and every activity that
produces an environmental impact. This approach to environmental
policy is a recipe for ecological central planning and is
destined to fail.
- Two PERC researchers, reviewing the history of the banned pesticide
DDT, have concluded that violation of private property rights
lies at the heart of the conflict over DDT. In "Property
Rights and Pesticides" Roger E. Meiners and Andrew P. Morriss
argue that excessive government spraying of DDT in the 1950s and
1960s caused environmental harm that led DDT to be banned. To
read the report, visit http://www.perc.org/ps22pr.html.
April 11, 2001
- Agriculture Biotechnology: Will Regulatory "Precaution"
Expand Liability Risks?
The application of biotechnology to agricultural and food products
presents unquestioned hope and opportunity for a world whose population
continues to grow. It is equally clear, however, that many activists
and a number of national and regional governments have declared
their staunch opposition to this promising technology, and are promoting
policies that reflect an extreme approach of "precaution"
in a misguided attempt to protect consumers. As this publication
argues, while much of the world's focus has been on the risks presented
by producing genetically enhanced crops and foods, significant legal
and public health risks exist for those who would apply such a regulatory
approach. After reviewing how certain nations and food producers
have rejected or place restrictions on the use of modified plants,
the paper goes on to discuss the specific legal and health risks
that these policies pose, and how they might be changed over time.
CONTACT: http://www.wlf.org
- First-Round Victory in New York Eminent Domain Challenge
On January 18, 2001, U.S. District Court Judge Harold Baer granted
a preliminary injunction against the Village of Port Chester, New
York. The injunction enjoined the Village from using its power of
eminent domain against property owner William Brody pending the
outcome of the ongoing constitutional challenge, brought by the
Institute for Justice on behalf of Mr. Brody and two other New York
property owners, to New Yorks Eminent Domain Procedure law.
In his 27-page opinion, Judge Baer found that Mr. Brody is likely
to succeed on the merits of his case challenging the lack of personal
notice granted New York property owners whose land is taken by the
government. The ruling thus gave hope to all New York property owners,
and granted Mr. Brody a reprieve from the threat of government condemnation
and destruction of his property, a peril that had loomed imminent
until Judge Baers decision. Ultimately, this lawsuit will
determine whether government entities in New York State can take
private property without giving the owner timely, individual notice.
Under the current law, an owner is helpless to legally defend his
rights because he is never notified of the 30-day period that is
his exclusive opportunity to challenge the condemnation of his property.
This suit will decide whether New Yorkers receive the meaningful
and direct notice they are constitutionally due. In the mean time,
the case continues. The discovery process began shortly after Judge
Baer issued the preliminary injunction order and is expected to
end by July 13, 2001.
March 28, 2001
- The Takings Project
Members of the Practice Group may find a report completed by a
public interest law firm in Washington, D.C. known as the Community
Rights Counsel of interest. The report, entitled "The Takings
Project: Using Federal Courts to Attack Community and Environmental
Protections," alleges that conservative and libertarian legal
activists, led by former Attorney General Edwin Meese and the
Federalist Society, have run a "15-year campaign to overthrow
two centuries of legal precedent interpreting the Fifth Amendment's
"Takings Clause" [in order to] prevent local, state
and federal governments from enforcing land use and environmental
laws by completely upending the long-standing body of case law
that balanced the rights of owners with those of the community."
To view this report, click: www.communityrights.org/takproj.html
- Recent Supreme Court News:
- Solid Waste Agency of Northern Cook County v. U.S. Army
Corps of Engineers
On January 9, 2001, the U.S. Supreme Court ruled that
the United States Army Corps of Engineers lacks authority
under the Clean Water Act to apply the Migratory Bird Rule
to isolated, non-navigable, intrastate wetlands. To read the
decision, click: http://supct.law.cornell.edu/supct/html/99-1178.ZS.html
To read more about the case and the decision, click: http://www.medill.nwu.edu/cases.srch?-database=docket&-layout=lasso&-response=/docket/detail.srch&-search&docket=99-1178
- Browner/Whitman, E.P.A. Admin. v. American Trucking Assoc.,
et al.
On February 27, 2001, the U.S. Supreme Court unanimously declined
to invalidate the EPA's ozone rule under the non-delegation
doctrine. However, as Leonard Leo recently stated in an e-mail
to Federalist Society members concerning the decision, the
Court did significantly limit the EPA's authority. Mr. Leo
summarized those limits as follows: First, writing for the
Court, Justice Scalia bounded the EPA's regulatory authority
in the Clean Air Act context by saying that any new standard
needed to be "sufficient, but not more than necessary"
to protect public health. This restraint was suggested by
the Solicitor General in oral argument. By thus taking a major
swipe at lead Industries and reaffirming the Supreme Court's
earlier pronouncement in Benzene, the Court's application
of this standard makes clear that the use of sound science
will be necessary in setting standards. Secondly, the Court's
opinion does in fact recognize that the costs of compliance
should be taken into account by the EPA and the states in
implementing any standards. Again, at the Solicitor General's
suggestion, the Court underscored the relevance of economic
efficiency and feasibility to the implementation of standards.
To read the decision click: http://supct.law.cornell.edu/supct/html/99-1257.ZS.html
For additional commentary, click: http://www.medill.nwu.edu/cases.srch?-database=docket&-layout=lasso&-response=/docket/detail.srch&-search&docket=99-1257
- Palazzolo v. Rhode Island
On February 26, 2001, the United States Supreme Court
heard oral argument in this significant takings case, which
will address the following issues:
- Whether a regulatory takings claim is categorically
barred whenever the enactment of the regulation predates
the claimant's acquisition of the property.
- Where a land-use agency has authorizatively denied a
particular use of property and the owner alleges that
such denial per se constitutes a reguatory taking, whether
the owner must file additional applications seeking permission
for "less ambitious uses" in order to ripen
the takings claim.
- Whether the remaining permissible uses of regulatory
property are economically viable merely because the property
retains a value greater than zero.
Tom Caso, who is the General Counsel for Pacific Legal Foundation,
submitted this report on the oral argument to the Heritage
Foundations Legal Strategy Network:
The argument started with some initial testing of the ripeness
question. When the state's attorney general attempted to follow-up
on those points, however, Justices Kennedy and Breyer both
pointed out that the AG had failed to raise those points in
the opposition to the petition for writ of certiorari. Justice
Kennedy summed up the issue by noting that the Rhode Island
Supreme Court had reached the issues presented in the petition.
The important issue in the case is the so-called notice rule:
Does an owner who takes property with notice of a regulatory
scheme have the right to file a takings claim when denied
a permit under that scheme? Justice Souter was the first to
ask questions on this issue and wanted to know when in time
the stopping point was for the assertion of property rights
-- does it go all the way back to colonial times, or are later
regulations part of the owner's title. Justice O'Connor asked
whether the answer lie in the investment backed expectations
analysis.
In questions to the Rhode Island Attorney General and the
Solicitor General, Justice Breyer asked whether a takings
claim ran with the land. Both the SG and AG answered no -
to which Justices Breyer, Kennedy, and O'Connor all objected
that such a rule was too harsh. Justice O'Connor wondered
about the application of such a rule to a "poor old widow"
without the resources to process a permit application. Justice
Breyer suggested that the claim did run with the land, and
then wondered out-loud whether takings damages should be limited
in such instances to investment backed expectations.
There was an interesting discussion of the relevant parcel
issue during the argument as well. The Chief Justice posited
a hypothetical where an owner of a square mile was applied
for permission to use 10 acres and that application was denied.
The Rhode Island AG argued that there would be no taking in
such a case since there was still value left in the parcel
(the portion of the property that was not the subject of the
permit application).
The Chief Justice immediately responded that the Court's
decisions would not support such a holding, and Justice Scalia
also expressed disagreement with the AG. Even Justice Souter
was not willing to go that far, arguing instead for a standard
that looked to the commercial practices of the community for
determining the appropriate parcel.
The Rhode Island AG did bring up the public trust doctrine
at the end of his argument, but no Justice expressed interest
in that line of argument. The AG also started the argument
by claiming that Palazzolo's use would have constituted a
nuisance. The Chief Justice immediately noted, however, that
that was not the basis of the Rhode Island Supreme Court decision.
For additional commentary on this case, click: http://www.medill.nwu.edu/cases.srch?-database=docket&-layout=lasso&-response=/docket/detail.srch&-search&docket=99-2047
- Lower Court Ripeness/ESA Decision
In the first known case relying on the ripeness doctrine to limit
the scope of judicial review and relief available for alleged
violations of the Endangered Species Act ("ESA"), District
Judge Samuel Conti on January 22, 2001 dismissed Environmental
Protection Information Center v. Tuttle, No. 00-0713-SC (N.D.
Cal.). The opinion is available at www.eswr.com/epicvtuttleop.pdf
The case was brought to our attention by member Donald Kochan,
whose firm (Crowell & Morring LLP) represented the successful
intervenor-defendants.
In California, before commercial timber harvesting can be conducted
on private lands, a State Forest Practices Act requires approval
by the California Department of Forestry ("CDF"). The
preservationist group Plaintiffs alleged that the CDF's regulatory
program failed to prevent "take" of listed salmon species
within the meaning of ESA Sec. 9, and alleged that ESA Sec. 11(g)
authorized a broad programmatic injunction to prevent CDF from
approving timber harvesting plans ("THPs") until the
agency adopted practices which ensured against small risks of
taking salmon. See 16 U.S.C. Sections 1538, 1540(g).
Judge Conti first dismissed ESA claims concerning already-approved
THPs on the ground that the claims against State officials for
declaratory relief regarding past violations of law were prohibited
by the Eleventh Amendment. Slip op. at 7-8. The district court
then found unripe Plaintiffs' prospective program-wide challenge
that CDF's forest practice regulations ("FPRs") unlawfully
allow ESA "take" of listed wildlife to occur. See slip
op. at 8-16. The principal analysis was that the programmatic
challenge to regulations satisfied none of the three ripeness
factors that the Supreme Court had applied in denying national
forest-wide review in Ohio Forestry Ass'n v. Sierra Club, 523
U.S. 726 (1998). Buttressing the analysis under Ohio Forestry,
the Court cited the important limitation on the scope of judicial
review and relief announced in Lujan v. National Wildlife Federation,
497 U.S. 871, 894 (1994). The "case-by-case approach"
to litigation (here, THP-by-THP challenges) may be "frustrating"
to Plaintiffs, but it "remains the normal, mode of operation
of the courts." Slip op. at 12. Rather than try to address
an ESA "take" claim based on "speculation and generality"
at the program-wide level, the "Court needs to concern itself
with more distinct and developed facts" in a "take"
claim brought against a particular THP with known facts. Slip
op. at 13.
- BLM Regulation Suspension
Donald Kochan also provided the following information: The
BLM will publish a proposal to suspend the new 3809 regulations
in the Federal Register on Friday, March 23. The proposed rule
would suspend the new rules and reinstate the old 3809 rules,
but until a final suspension rule is published, the new rules
remain in effect. To read the BLM press release on this topic,
click: www.blm.gov/nhp/news/releases/pages/2001/pr010321_3809.htm
- The Pioneer institute recently released a study authored by
Boston Lawyers chapter member Michael Malamut entitled "The
Power To Take: The Use Of Eminent Domain In Massachusetts. The
study is the first to determine patterns in the use of eminent
domain and includes a survey of law review articles, reported
decisions and statutes. To read it, click: http://www.pioneerinstitute.org/research/whitepapers/wp15cover.cfm.
March 14, 2001
February 13, 2001
- The Greening of Foreign Policy
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Bringing environmental issues into foreign policy-making and international
law endangers trade, national sovereignty, and, ironically, long-term
environmental improvement, according to two associates of the
Political Economy Research Center (PERC). They contend that long-term
environmental quality is best served by freeing up trade and decentralizing
environmental decisions. Among other policies, the authors raise
questions about the composition of the International Whaling Commission,
the diversion of defense funds to protecting endangered species,
and the tilting of free-trade agreements toward environmental
goals. CONTACT: Political Economy Research Center, 502 S. 19th
Avenue, Suite 211, Bozeman, MT 59718, 406/587-9591, fax 406/586-7555,
email perc@perc.org,
http://www.perc.org/ps20pr.htm.
- Why Safe and Effective Food Biotechnology Is in the Public
Interest
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Agricultural food production is part of an increasingly complex
global agrifood system in which issues played out on one continent
are instantly felt around the world. Most scientists working in
the field are in total agreement with the stated mission of environmental
and consumer groups around the world: we need to feed and clothe
the world's people while minimizing the impact of agriculture
on the environment. Ironically those activists do not share agrifood
scientists' view that the safest and most effective approach to
achieving this goal is the application of the miracles of biotechnology.
Instead, they demagogue biotech foods in an attempt to scare consumers
into rejecting it. In this paper, an internationally respected
biotechnology scientist provides a concise and convincing overview
of agricultural biotechnology's benefits and counters activists'
arguments that this food enhancement process will undermine public
health and safety.
These benefits, the author argues, in turn create life-saving
opportunities for less developed nations and their millions of
impoverished residents. The paper concludes by examining and refuting
activists' arguments for an extreme "precautionary approach"
to regulating enhanced crops and the resulting food products.
27pp. CONTACT: Washington Legal Foundation, 2009 Massachusetts
Ave., NW, Washington, D.C. 20036, 202/588-0302, fax 202/588-0306,
email root@wlf.org,
http://www.wlf.org.
February 8, 2001
January 16, 2001
- WASHINGTON LEGAL FOUNDATION v. LEGAL FOUNDATION, No 98-35154
(9th Cir. January 10, 2001) Washington state's Interest On Lawyer's
Trust Account Program violates the Fifth Amendment because government
appropriation of the interest earned on client trust accounts
is a "taking" that entitles clients to just compensation.
To read the full text of this opinion, go to: http://laws.lp.findlaw.com/9th/9835154.html
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2003 The Federalist Society
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