By Lawrence A. Kogan*
An April 20, 2017 WLF Legal Pulse post on the need for a new strategy for federal wetlands regulation presented a long-running enforcement action against a small Erie, Pennsylvania farmer as indicative of the harm wrought by the government’s deeply flawed current approach to “waters of the United States” (WOTUS). Two recent developments—an order by a federal magistrate judge in the US District Court for the Western District of Pennsylvania and the filing of three Federal Tort Claims Act (FTCA) claims by the targeted farmer, Robert Brace—might significantly change the course of this 30-year law-enforcement misadventure.
The US Environmental Protection Agency (EPA) first initiated a lawsuit under § 404 of Clean Water Act (CWA) against Brace in 1990 (United States v. Brace). The suit claimed Brace unlawfully failed to obtain a US Army Corps of Engineers (Army Corps) dredge-and-fill permit for drainage-tilling activities undertaken on government-designated wetlands. The suit came after Brace, a well-known property rights advocate, had endured three years of being served with EPA, Corps, and US Fish & Wildlife Service (FWS) administrative-violation notices. Continue reading
Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP
A fractured US Court of Appeals for the Fifth Circuit rejected a request seeking rehearing en banc of the court’s decision in Markle Interests, LLC, et al v. U.S. Fish and Wildlife Service, et al. The February 13 decision is the latest in the ongoing legal saga regarding the endangered dusky gopher frog and the designation of private property in Louisiana as “critical habitat”—even though this “shy frog” does not reside on the land and the land does not currently feature the characteristics needed to support the frog.
On June 5, 2016, a majority panel for the Fifth Circuit upheld the district court’s opinion that nearly 1,500 acres of private land in Louisiana (“Unit 1”) is critical habitat for the frog and therefore subject to the requirements of the Endangered Species Act. In order to be designated as critical habitat, land must meet strict criteria: it must contain physical or biological features essential to conservation of the species. The land in question contains only one of three features considered necessary to support the dusky gopher frog—five ephemeral ponds—and more significantly, is covered with closed canopy pine that make the land uninhabitable by the species. Designation of the land as critical habitat comes at a cost of nearly $34 million in economic impact to the landowners. Despite these facts, the majority held that the land was critical habitat and furthermore, that the US Fish and Wildlife Service’s decision not to carve out Unit 1 from the critical-habitat decisions was judicially unreviewable. Continue reading
By Trey Wassdorf, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.
At the behest of special-interest activists and government regulators, federal courts continue to broaden the scope of the Endangered Species Act (ESA), often in ways that do little to actually preserve plants and animals. The latest expansive ruling comes from the US Court of Appeals for the Fifth Circuit. In Markle Interests, L.L.C. v. United States Fish and Wildlife Service, the court upheld the designation of 1,544 acres of private land in Louisiana as “critical habitat” for the dusky gopher frog, Rana sevosa, even though it does not reside on the land and the land does not currently feature the characteristics needed to support the frog. Continue reading
Lesser Prairie Chicken
On July 20, 2016, ten months after a U.S. District Court for the Western District of Texas judge ruled that federal regulators erred in finding the lesser prairie chicken “threatened” under the Endangered Species Act (ESA), the US Fish & Wildlife Service (FWS) finalized its delisting decision. The decision not only validates the work of a public-private bird-conservation partnership, it will also test the viability of such state-based efforts. Continue reading
Featured Expert Column − Toxic Tort and Environmental Litigation
Richard O. Faulk, Esq., a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.
*The views and opinions expressed in this article are those of the author and do necessarily represent or reflect the views of Alexander Dubose Jefferson & Townsend LLP.
Since the United States Supreme Court’s Skidmore v. Swift & Co., and Bowles v. Seminole Rock & Sand Co. rulings, the role of judicial deference in administrative law has expanded exponentially. For example, agencies now receive deference, under the Court’s Auer v. Robins decision, even if their own drafting creates the very vagaries and ambiguities that require interpretation. Courts also defer to agencies’ interpretations of statutes they are charged to administer (Chevron U.S.A. Inc. v. NRDC) and to scientific conclusions reached in the course of the regulatory process (Baltimore Gas & Electric Co. v. NRDC). By indulging these perspectives, the courts necessarily surrender their constitutional authority to “say what the law is,”1 and contribute to an arrogation of administrative power that threatens not only our constitutional separation of powers, but also their balance.2
Regulatory agencies have grown into what some call a “fourth branch” of our federal government.3 The threat posed by this de facto branch, also known as the “Administrative State”4 or, more colorfully, our “Junior Varsity Congress,”5 has attracted the growing attention of a number of Supreme Court justices. Continue reading
Barry M. Hartman, K&L Gates LLP*
Editor’s Note: This is the sixth in a series of guest commentary posts that address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.
The WLF Timeline notes that in 2005, the Environmental Protection Agency (EPA) started co-locating its civil and criminal offices; it turns out this was just the tip of the iceberg. There has been a long pattern of convergence of criminal and civil environmental enforcement at EPA, jointly with the Department of Justice’s (DOJ) Environmental Division. When the difference between a criminal and regulatory offense—the “knowledge” or “scienter” requirement—was clear, a company knew what the stakes were if it was being investigated civilly. But over the last 25 years, the continuing relaxation of the “scienter” requirement in the environmental arena has blurred that distinction, so that the only articulation an EPA or DOJ lawyer will typically give to that standard is, “I know it when I see it,” allowing the government to use criminal sanctions where administrative or civil penalties would be more appropriate. Continue reading