News 2001

  • 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:
    Co-sponsors of S. 556:

  • 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.

Text of H.R. 2869:
Co-sponsors of H.R. 2869:

To view a full copy of the latest Watch Report in PDF format, please visit: News and Analysis of Major Legal and Policy Issues Affecting the Private Sector written by Daren Bakst, Policy Counsel, NLCPI.

October 1, 2001

August 31, 2001

  • 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:
  • 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.

May 23, 2001

  • 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

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:
  • 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 York’s 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 Baer’s 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:
  • 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:
      To read more about the case and the decision, click:

    • 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: For additional commentary, click:

    • 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:

        1. Whether a regulatory takings claim is categorically barred whenever the enactment of the regulation predates the claimant's acquisition of the property.
        2. 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.
        3. 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 Foundation’s 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:

  • 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 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:

  • 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:

March 14, 2001

February 13, 2001

  • The Greening of Foreign Policy
    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,

  • Why Safe and Effective Food Biotechnology Is in the Public Interest
    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,

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:

2003 The Federalist Society