PLF Liberty Blog

Roger Clegg hits the nail on the head

Author: Joshua Thompson 

Roger Clegg, President of the Center for Equal Opportunity, has a very good piece on The National Review Online, reviewing a piece in The Washington Post.  Mr. Clegg has worked with PLF attorneys in the past, (see here, or here) and is nationally-known for his insight into race-preferences, Equal Protection, and discrimination issues.

Join us to celebrate the legacy of Milton Friedman

Author: Timothy Sandefur

On July 31, Pacific Legal Foundation will join with the Cascade Policy Institute in Portland, Oregon, to commemorate the life and achievements of Milton Friedman. More information on the event here.

The keynote speaker is state Representative Matt Wingard; I’ll also be there, along with PLF client Adam Sweet, who recently overturned the moving industry cartel that was established by Oregon’s licensing laws. Our friends at the Cascade Policy Institute were instrumental in helping Pacific Legal Foundation to end the state’s policy of giving unfair preferences to established moving companies. You can read more about Adam Sweet’s case here.

Are judges umpires?

Author:  Damien M. Schiff

Professor Holly Doremus has this post from Legal Planet criticizing the analogy between umpires and judges.  Professor Doremus contends that the analogy is inapt for at least two reasons:  first, umpires do in fact have much discretion (compare one ump's strikezone to another and the point is proved); and second, the problems addressed by judges are far more complex than those decided by umpires.

The principal difficulty with Professor Doremus's analysis is that she seems to mistake complexity for indeterminacy.

The Sotomayor hearings have popularized the notion that judges should have "empathy"; the defenders of the "empathetic" judge contend that many legal questions do not have determinate answers, and so we should want judges who are emphathetic so that they can effect some form of rough justice in those allegedly indeterminate cases.  But these supposed instances of indeterminacy either do not exist, or, if they do exist, are the result of poorly crafted judicial rules.

In the first instance, the tools of textualism and originalism make plain what the judge's responsibilities are (even where determining the interpretive or historical facts upon which textualism and originalism operate may at times be quite challenging).  In the second instance, the indeterminacy that results from the application of "multi-factor balancing tests," for example, should not be used to support empathetic judicial decisionmaking but rather should provide strong reasons to change those tests so that they produce determinable results.

Democrats' health care bill

Author: Joshua Thompson

The Democrats' prodigous 1,018 page health care bill is available for online viewing.  The American Thinker has discovered that the bill is loaded with race-preferences. 

Why is it that everytime a new government boondoggle is proposed, the bureaucrats have to make sure that money is allocated according to people's skin color?

H/t: SGG

Barbara Boxer: Step 1 -- Find mouth. Step 2 -- Insert foot.

Author: Joshua Thompson

Harry C. Alford, president and chief executive of the National Black Chamber of Commerce spoke yesterday during the Senate hearing chaired by Barbara Boxer (D-CA) , entitled "Ensuring and Enhancing U.S. Competitiveness while Moving toward a Clean Energy Economy.”  Fireworks ensued.

After Mr. Alford spoke about how the climate change bill would negatively effect small businesses, Sen. Boxer found it appropriate to read a resolution from the NAACP supporting the bill into the record.  Mr. Alford shot back questioning the relevance of a resolution by the NAACP when he was invited and brought documentation to support his testimony.  After some back and forth Mr. Alford said:

"We are referring to the experts regardless of their color. And for someone to tell me, an African-American, college-educated veteran of the United States Army that I must contend with some other black group and put aside everything else in here -- this has nothing to do with the NAACP and really has nothing to do with the National Black Chamber of Commerce. We're talking energy and that road the chair went down, I think, is god-awful."

You can watch the video here.

H/ts: politico, Wall Street Journal, New York Times.

Philadelphia: The good and the bad

Author: Joshua Thompson

The Philadelphia Inquirer published an excellent editorial Sunday.  I stumbled upon the article after it was re-printed in the Sacramento Bee today.  Granted, any editorial that quotes from Federalist 62 is bound to be one of my favorites, but, it's also great to hear The Inquirer ask Supreme Court nominee Sotomayor to explain how she missed a deicision that "seems so obvious" in the Ricci case.

I hope The Inquirer next takes a look at this outrageous, race-based policy in their back yard. The Philadelphia School District determines transfers and other teacher placement decisions on the basis of their applicants skin color.  For example Art. VIII. C.5.1 blatantly requires that "The teacher of the appropriate race with the least seniority" will be the first transferred.

Troubling, to say the least.

Does the Equal Protection Clause require the government to treat people differently?

Author: Joshua Thompson

HUH?  Does the Equal Protection Clause require that blacks and whites (or Asians and Latinos) be treated differently?

Does the Equal Protection Clause...

Equal.  Differently?

So argue the plaintiffs in the 6th Circuit case of Coalition to Defend Affirmative Action v. Regents of the University of Michigan.  So argues San Francisco in their amicus curiae brief to that same court.  So argues San Francisco in their briefing to the California Supreme Court in Coral Construction, Inc. v. City and County of San Francisco.

reality bites: the Endangered Species Act puts fish before people

Author: Brandon Middleton

Last week NRDC's Doug Obegi weighed in on the California water crisis by discussing "The Fallacy of 'Fish versus People.'" His message:

While some Members of Congress and other elected officials have fallen hook, line and sinker for the myth that protecting California's endangered fish species like salmon is a struggle of 'people vs fish,' other voices are speaking out passionately against this false choice.

Curiously absent from Mr. Obegi's analysis is any mention of the Endangered Species Act. After all, the Endangered Species Act is the law that codifies that "fish before people" mantra that Mr. Obegi for some reason believes to be a lie.

The omission of the words "Endangered Species Act" is disappointing, but hardly surprising.  As we noted last week, national environmental advocates like Mr. Obegi don't want the public to realize that it is unmistakably clear that the ESA puts fish and endangered species ahead of people.  They want the public to think that everybody is a winner under the Endangered Species Act, but that is far from the truth.

Even the Supreme Court has noted that the ESA is not a statute of equal rights between endangered species and humans, but that instead it affords endangered species "the highest of priorities."  TVA v. Hill suggested that intent of the ESA is "to halt and reverse the trend towards species extinction, whatever the cost."

This language from TVA v. Hill can be used to argue that endangered fish and others species come before people, and that of course is what the national environmental movement has done.  The Endangered Species Act and TVA v. Hill have been numerous times used to stifle the reasonable economic development -- in other words, the Endangered Species Act represents a triumph of environmental extremism over human progress.

However one feels about it, there should be no debate that a "fish before people" policy exists in California due the Endangered Species Act.  The real fallacy is for national environmental advocates like Mr. Obegi to suggest otherwise.

the hidden costs of environmental litigation

Author: Brandon Middleton

As California's economic troubles continue, more and more people are waking up to the hidden costs that accompany environmental litigation. Last week Chapman University presidential fellow Joel Kotkin noted that "[i]n California today, everyone who makes a buck in the private sector--from developers and manufacturers to energy producers and farmers--cringes in fear of draconian regulations in the name of protecting the environment." (h/t: Fox & Hounds Daily) He aptly described the current crisis in the Central Valley:

Large swaths of this area are being de-developed back to desert--due less to a mild drought than to regulations designed to save obscure fish species in the state's delta. Over 450,000 acres have already been allowed to go fallow. Nearly 30,000 agriculture jobs--held mostly by Latinos--were lost in the month of May alone. Unemployment, which is at a 17% rate across the Valley, reaches upward of 40% in some towns such as Mendota.

Pacific Legal Foundation is keenly aware of how environmental statutes like the Clean Water Act and Endangered Species Act put a stranglehold on economic progress. While there are many potential solutions to this problem, PLF is one of the few organizations that is fighting this battle where it matters: in the courts.

For example, PLF has urged the Ninth Circuit to affirm federal environmental permits for the City of Redding's Stillwater Business Park. In its amicus curiae brief (available here), PLF requested the court to closely examine the consequences of accepting the environmental plaintiff's arguments that the business park project should not go forward. Of particular concern in Butte Environmental Council v. Corps of Engineers is the fact that the City of Redding has gone through years of negotiations for a Clean Water Act Section 404 permit, and yet still faces questions as to whether the project is environmentally sound:

It is difficult enough for “regulated entities . . . to feel their way [through the Section 404 permitting process] on a case-by-case basis.” Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring).  Overturning the Government’s approval of the Stillwater Business Park would add even further confusion and uncertainty to the regulated public’s understanding of what is required by the Clean Water Act. Given the regulatory uncertainty that would result from halting the City of Redding’s development project, the prohibitive costs of the Clean Water Act, and the extensive analyses conducted by the Corps, the district court’s conclusion that the Corps adequately considered the alternatives to the Stillwater Business Park site should be affirmed.

The Ninth Circuit's decision in Butte Environmental Council is pending.

By reminding the courts of the true costs of environmental regulation and litigation, Pacific Legal Foundation furthers its mission to "promote sensible environmental policies that respect individual freedom and put people first." We are at the forefront of ensuring that liberty does not take a back seat to "environmentalism at all costs."

Radanovich Signs Pacific Legal Foundation’s ‘Save Our Water’ Petition to Schwarzenegger and Obama

We are pleased to announce that Congressman George Radanovich has signed Pacific Legal Foundation's "Save Our Water" Petition. We thank the Congressman for his support, which indicates how truly important PLF's petition is. Congressman Radanovich is fully aware of the draconian Endangered Species Act water restrictions and wants Governor Schwarzenegger to do all that he can to bring much needed relief. Radanovich understands how convening the "God Squad" is an important step in the right direction.

Today the Congressman stated the following:

“Environmental restrictions on federal and state water deliveries have wrecked havoc on farmers and farm workers in the San Joaquin Valley. Unemployment in the Valley is at 20% and in some towns as high as 40%. We've lost 40,000 jobs and almost a billion dollars in agriculture revenue. Crime and homelessness are skyrocketing as is alcohol and drug abuse.

“Speaker Pelosi has ignored and actively worked against every attempt that I and the rest of the Valley delegation have made to fix the current man made drought in California and relieve the San Joaquin Valley of a humanitarian crisis that is a result of oppressive environmental regulations that value the lives of fish over humans.

“Join me in signing Pacific Legal Foundation’s petition and send the radical environmentalists in Washington and Sacramento a message: when it comes to water policy, humans come before fish.”

Congressman Radanovich's press release will be available on his website within the next few days, and we again thank him for his support -- if you have not already done, please join him and the thousands of others in asking Governor Schwarzenegger to put humans before fish!

Environmentalists signal strong support for Sotomayor

Author:  Damien M. Schiff

Earthjustice and 60+ environmentalist organizations have submitted a letter to the Senate Judiciary Committee indicating their support for Judge Sotomayor's appointment to the Supreme Court.  These groups believe that Sotomayor will prove to be a green judge as Justice Souter purportedly was.  Their speculation is based on rather slim evidence.  But perhaps they know her empathy better than we.

Eighth Circuit rules in post-Rapanos decision

Author:  Nicholas M. Gieseler

Bad news this morning by way of the Eighth Circuit, as its decision in United States v. Bailey dealt a blow to property rights.  The decision granted the federal government jurisdiction over private property located more than 200 feet away from a navigable waterway.  Under Justice Scalia's 2006 plurality opinion in Rapanos, the government would have no authority over Mr. Bailey's land.  In Rapanos, Justice Scalia, joined by three other justices, limited federal Clean Water Act jurisdiction over property to wetlands that have "a continuous surface connection" with a navigable body of water, "making it difficult to determine where the water ends and the wetland begins."  Scalia's simple jurisdictional test makes logical sense. Under his test, wetland property with surface water that flows directly into a navigable waterway is covered by the Clean Water Act.  All other wetland property is not.

In Bailey, however, the Eighth Circuit decided to bypass the Scalia test, and instead applied the test formulated by Justice Kennedy's concurring opinion in Rapanos, which was joined by no other justice.  Justice Kennedy's test purports that any wetland possessing a "significant nexus" to a navigable waterway is jurisdictional under the Clean Water Act.  Unlike Scalia's test, in which the jurisdiction of a wetland can be relatively easily determined by the naked eye, Kennedy's test requires mounds of expert analysis to examine the "nexus" between a privately owned wetland and a navigable waterway.  Often times this nexus can be determined through a convoluted practice of tracing water flow through a series of connected wetlands.

While, at the time, the Rapanos decision was widely considered a victory for private property rights in America, it has taken just three years for the courts to systematically strip away its gains.  Our amicus brief in the case focused in part on an analysis of the Marks rule.  In Marks, the Supreme Court attempted to reconcile instances where the court is fractured and there is no majority opinion.  The Marks court stated that when such a court fracture is present, the holding may be viewed as the position taken by concurring members in the judgment "on the narrowest grounds."  The phrase "on the narrowest grounds" has presented nightmares for many jurists since it was first posited in 1977.  

In this case, the "narrowest grounds" is represented by the Scalia test.  While all wetland property that is jurisdictional under Scalia is assuredly also jurisdictional under Kennedy, the same cannot be said for the opposite.  Generally speaking, a proper application of the Marks rule results in the controlling opinion being the one that applies to a smaller set of cases.  Here, it is the Scalia test that clearly applies to a smaller set of cases.  The Bailey court, however, chose to bypass an in depth Marks analysis, and instead ruled that a wetland is jurisdictional if it fits into either test provided by the Court in Rapanos.  Functionally, this results in a repudiation of the plurality test and an adoption of the Kennedy test. The Bailey court is just one of several circuits to bypass Rapanos' well-defined plurality test in favor of the vague and expansive test put forth solely by Justice Kennedy.  The post-Rapanos fight will continue in other circuits, but until the Supreme Court adopts a clear jurisdictional test, wetland property owners will remain unsure of their rights

Congressional relief for Central Valley fails

Author:  Damien M. Schiff

Yesterday, an amendment to an appropriations bill, sponsored by Representative Nunes, that would have provided an exemption from the Endangered Species Act for the State Water Project and the Central Valley Project failed in committee.  The amendment was defeated 31 to 25, garnering 3 Democratic votes.

Arizona may be the next state to ban race and sex preferences

Author: Joshua Thompson 

Some uplifting news came out of Arizona a couple of weeks ago, when the Arizona Senate approved a bill that will offer voters the chance to ban race- and sex-based preferences by their state and local government.  Last year supporters of the intiative turned in over 100,000 more signatures than were required, but the initiative failed to get on the ballot when the Arizona Attorney General invalidated over 130,000 signatures.  (Opponents of the initiative used numerous deplorable tactics to prevent Arizonans from being able to vote on the issue.) 

Now that the Arizona legislature has acted, Arizona voters will get their say.  Similar measures have been approved by voters in California, Washington, Michigan, and Nebraska.  With the federal government continuing to allow race- and sex-based preferences, these voter initiatives remain a great tool for people who fight for equality. 

The Arizona initiative is on my mind as PLF finalizes its amicus brief in the 6th Circuit Court of Appeals in Coalition to Defend Affirmative Action v. Regents of the University of Michigan.  There, opponents of Michigan's ban on race- and sex-based preferences argue that the ban violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  I'll blog more on that topic soon, but you can read about PLF's involvement in that case here.

For now, kudos to Arizona!

Is breaching the dams in the Pacific Northwest a good idea?

Author: Damien M. Schiff

So argues author Paul VanDevelder this week in the Los Angeles Times.  Van Develder refers to Judge James Redden's recent letter to the federal defendants in National Wildlife Federation v. National Marine Fisheries Service (noted on this blog) that, if renewed federal efforts to restore depleted salmon populations in the Pacific Northwest fail, the judge may order the breaching of dams along the Snake River.  (See here for earlier Times coverage). Suffice it to say, Mr. VanDevelder's description of those dams as "economic sinkholes, which produce less than 3% of the region's power, do nothing for flood control, irrigate only a handful of big farms and subsidize transportation costs (at the expense of taxpayers and salmon) for wheat farmers in Idaho and eastern Washington" is rather tendentious.