U.S. Government Should Champion Foreign-Commerce Authority in Washington Export Terminal Legal Dispute

longview-coal-export-site-bv
Port of Longview, WA

Lighthouse Resources, Inc. v. Inslee, a federal lawsuit of great national consequence pending in the U.S. District Court for the Western District of Washington (here and here are our past posts on it), has reached a critical point after a year of pre-trial developments. In its January 3, 2018 complaint, Lighthouse Resources (LHR) and BNSF Railway (which intervened as a plaintiff) allege that several Washington State officials, including Governor Jay Inslee, violated the U.S. Constitution and federal laws by blocking approval of a water-port terminal in Longview, Washington. Earlier this month, the plaintiffs moved for partial summary judgment on their claim that the officials intruded on the U.S. government’s exclusive authority over foreign commerce.

Given the lawsuit’s enormous implications for the American economy and federal foreign-affairs power, the U.S. government should file a “statement of interest” with the court urging it to enjoin Washington’s actions. Those actions—motivated, LHR and BNSF assert, by state officials’ desire to block foreign sales of a single disfavored commodity, coal—contravene a federal directive encouraging U.S. exports of energy resources to U.S. allies in Asia. Continue reading “U.S. Government Should Champion Foreign-Commerce Authority in Washington Export Terminal Legal Dispute”

Children’s Crusade for Judicially Managed Climate Regulation Stalls in Federal Court

EDPAOne act in the nationwide climate-litigation sideshow recently got the proverbial hook from a Pennsylvania-based federal judge. From chambers that are fittingly just around the corner from Independence Hall in Philadelphia, Judge Paul S. Diamond refused to “make the Executive a subsidiary of the Judiciary,” which is exactly what the plaintiffs in Clean Air Council, et al. v. United States sought.

Over the past ten years, plaintiffs’ lawyers, environmental activists, and government officials have filed many forests-worth of legal complaints featuring page after page of alarming rhetoric alleging acts and omissions that cause climate change. The suits target both the federal government and private businesses. Plaintiffs have included a coastal Alaskan village, the state of Rhode Island, New York City, and the Boulder County Board of Commissioners. Continue reading “Children’s Crusade for Judicially Managed Climate Regulation Stalls in Federal Court”

Knick v. Scott Township: Whack-a-Mole at the Supreme Court

whackToday’s Supreme Court argument in Knick v. Scott Township made clear that state and local governments are playing Whack-a-Mole with private property rights. Whack-a-Mole is the arcade game in which every time a mole is whacked down, a new one pops up. At issue in Knick is whether to overturn the Court’s 1985 Williamson County decision, which held that Fifth Amendment Takings Clause claimants are generally relegated to state court.

When property rights advocates subsequently pointed out that Williamson County effectively barred property owners from ever asserting their Fifth Amendment rights, state and local governments persuaded the Court to re-interpret the nature of a Takings Clause violation (in its 2005 San Remo Hotel decision) to eliminate the no-right-to-assert problem. But when Justice Gorsuch suggested at today’s oral argument that this revised interpretation of the Takings Clause undercuts Williamson County’s rationale, the attorney for Scott Township denied the validity of the revised interpretation—in effect arguing that San Remo ought to be overruled. Continue reading Knick v. Scott Township: Whack-a-Mole at the Supreme Court”

Update: Solicitor General Encourages SCOTUS to Review Vast Expansion of Clean Water Act

supreme courtA November 2018 commentary by our Featured Expert Contributor on environmental-law matters, Samuel Boxerman (with Ben Tannen), discussed two related petitions for certiorari pending at the U.S. Supreme Court that presented a novel Clean Water Act question: whether a discharge through groundwater is an addition of a pollutant to waters of the United States from a point source.  Decisions from the U.S. Courts of Appeals for the Fourth and Ninth reasoned that the groundwater qualifies as a point source. Other appeals courts, including the Sixth Circuit, disagree.

In December, the Court invited the Solicitor General of the United States to present the government’s view on whether to grant the petitions. Yesterday, the Solicitor General filed its brief with the Court, urging it to resolve the circuit split.

The brief doesn’t express the government’s legal position on the groundwater-discharge issue, but it does explain why the Ninth Circuit decision, Hawai’i Wildlife Fund v. City of Maui, offers a better vehicle for circuit-split resolution. The Solicitor General also explained that the Environmental Protection Agency’s ongoing review of groundwater’s status as a point source under the CWA (see WLF’s comments here) is not a reason for the justices to deny certiorari.

The question before the Court is a critical one for free enterprise. As Mr. Boxerman and Mr. Tannen wrote in a February 2018 commentary on the Maui decision:

Left as is, the Maui decision could present significant issues across industry.  By holding that the Clean Water Act regulates discharges through groundwater without providing a limiting principle as to when the connection to U.S. waters is too remote, the Ninth Circuit has exponentially increased a source’s risk of liability under the Act.

 

Update: Justices Seek Federal Government’s Views on Pending Clean Water Act Suit Petitions

supreme courtIn a November 20 Featured Expert Contributor post, Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction, Sidley Austin LLP partner Sam Boxerman and his colleague Ben Tannen discussed two related certiorari petitions pending before the U.S. Supreme Court. Both petitions ask the Court to review circuit court decisions that held discharges through groundwater are an addition of a pollutant to “waters of the United States” from a point source.

Today, the Court released an Order calling for the views of the Solicitor General on the petitions in Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 18-260 (Aug. 27, 2018) and Kinder Morgan Energy Partners, L.P. v. Upstate Forever, Case No. 18-268 (Aug. 28, 2018).

The Order asked the Solicitor General to provide his views on the petitions by Friday, January 4, 2019.

In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns

DOIAfter the Executive Branch changed hands a little over two years ago, professional environmental activists promised a steady stream of lawsuits against both private enterprises and the federal government. Such a bold pronouncement was great for the green activists’ fundraising, as environmental non-profits bragged of 100 to 700 percent increases in donations.

Those groups have certainly followed through on their pledge, filling federal district and appellate courts’ dockets with lawsuits. One group’s homepage, for instance, boasts the group has sued the administration 95 times, “and we’re nowhere near finished.” In their zeal to vastly expand the applicability of federal laws and regulations and to block reasonable federal policy changes, green activists have shown little interest in the due-process rights of businesses and individuals. Lawsuits to overturn two federal policies illustrate this disregard. Continue reading “In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns”

Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction

 

Featured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP, with Ben Tannen, Sidley Austin LLP

The definition of waters of the United States is central to the CWA.  At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  33 U.S.C. § 1311(a).  “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,”  and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  See 33 U.S.C. §§ 1362(7), (12) and (14). Continue reading “Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction”