PLF Liberty Blog

PLF's Timothy Sandefur on San Francisco public radio

PLF attorney Timothy Sandefur will be on San Francisco's 91.7 KALW at 7 pm to discuss the philosophical and legal nature of private property.

Update: You can hear a podcast of the show by clicking here.

Setting boundaries for property rights

Author: Timothy Sandefur

The National Law Journal has published my article about the case of Stop The Beach Renourishment v. Florida, which the Supreme Court has decided to hear later this year. Excerpt:

When the U.S. Constitution was written, there was broad consensus in America that private property was a fundamental human right and that government existed to protect it, not to manipulate it to serve purposes politicians deemed more important. But today, the nation's intellectual elite — and particularly judges — have rejected the traditional principles underlying property rights. They see property as simply a privilege the government can alter or rearrange at will. America's founders believed that a person's right to own, buy, sell and use property was a timeless moral principle, not a temporary expedient that changes based on who wins elections. Hence the clash between today's lawmakers — who want maximum power to manipulate property — and permanent constitutional principles designed to protect each individual's right to pursue happiness.

PLF filed a friend of the court brief in this case along with our friends at the Cato Institute and the National Federation of Independent Businesses.

PLF says water regs go too far

Author: Harold Johnson

In this comprehensive article, PLF attorney, M. Reed Hopper, critiques the Clean Water Restoration Act pending in Congress.  He exposes the misconceptions on  which the Act is based and argues the Act far exceeds congressional power.  Contrary to common belief and longstanding constitutional principles, CWRA would not restore federal authority to pre-SWANCC and -Rapanos conditions, but would expressly subject ALL waters in the United States to federal control for the first time in our Nation's history.

The misuse of the Endangered Species Act: becoming clearer everyday

Author: Brandon Middleton

When the Endangered Species Act was first enacted in 1973, it would have been hard to imagine that this law would eventually find disfavor among significant portions of the American public.  After all, who could be against protection of endangered species?

As we approach 2010, however, it becomes more and more evident that there something inherently wrong about the Endangered Species Act -- the public still favors protection of endangered species, yet is turned off about the uncompromising nature of the ESA.  Whether it's the ESA's failure to incentivize endangered species protection, it's lack of respect for private property rights, or it's shoddy record at actually rehabilitating species, skepticism towards overzealous enforcement of the ESA is well-justified.

On this subject, Sean Paige has a great post on why those in the West think the Endangered Species Act is "synonymous with tyranny."  Paige is keenly aware of how powerful the Endangered Species Act really can be: "Discover a new natural gas field in the Rocky Mountain region and in no time flat, almost miraculously, a host of rare plants or animals -- all in dire need of protection -- will be discovered there. It's the silver bullet that can stop any infrastructure project: any roadway, dam, reservoir, power plant, pipeline."  Thanks to Michelle Malkin for the pointer.

For more on the devastation that the Endangered Species Act can create, check out Newsweek's special report, "Valley of the Shadows," particularly this section on the dire situation faced by San Joaquin Valley farmers and laborers.  Hugh Hewitt's recent San Francisco Examiner commentary on why California's housing crisis is unlikely to end soon due to laws like the ESA is also a worthwhile read.

Pipe dreams and the response to PLF's "Save Our Water" Petition

Author: Brandon Middleton

As my colleague Damien Schiff noted last week, Pacific Legal Foundation has submitted over 12,000 signatures to California Governor Arnold Schwarzenegger urging him to formally request the convening of the "God Squad." The "God Squad" committee would be managed by the Obama administration and would have the power to exempt California's water projects from draconian Endangered Species Act restrictions.

The immediate result of a successful "God Squad" campaign would be more water for the dry San Joaquin Valley. Rather than acknowledge this simple reality, the response of the environmental community has been to shift the debate to their own causes célèbres and ignore the fact that the Endangered Species Act is being used to manage California's water supply. Consider, for example, NRDC's Doub Obegi, who describes PLF's ESA "God Squad" campaign as "rhetoric" and advocates for a "Virtual River" as "the best solution to meet the water needs of farmers, businesses, residents, fishermen, and the environment."

That's great, I suppose, but what is to be done about the Endangered Species Act and its stranglehold on California water management?  Here, Obegi's silence is deafening.  You can come up with all of the long-term solutions to California's water problems that you want, but unless you acknowledge the significant role the ESA is playing at present, it is a pipe dream to suggest your proposal will actually be a solution.

Polar bear update: "It's a good time to be a polar bear."

Author: Brandon Middleton

An editorial in yesterday's Washington Times describes how conditions in the Arctic are not fitting the alarming narrative behind the listing of the polar bear as a threatened species under the Endangered Species Act:

It's a good time to be a polar bear. Unusually cool temperatures in the northern climes last winter produced thicker-than-usual polar ice. This gave the lucky bears an extra two weeks to roam the ice floes to hunt ringed seals. As a result, adult bears are better fed and more cubs are surviving their first year. The bears will go into the winter with greater energy stores, which will mean a better chance of survival and even more cubs.

As the editorial points out, there's good reason to think that the listing of the polar bear had little to do with science:

The polar bear was chosen as a marketing tool for the global-warming alarmists since they are more cuddly looking than, say, the Burrington jumping slug. But if numbers begin to increase significantly, the Arctic mammals could be equally effective as symbols of global cooling. Activists dismiss this year's cold conditions as a blip, but global temperatures have generally been declining over the last decade, an inconvenient truth for those who like to think in terms of "tipping points" and other panicky cliches.

Indeed, given the current status of the polar bear's population and the U.S. Fish and Wildlife Service's own projections on the population, the listing of the polar bear defies logic and law.

This is the very point behind Pacific Legal Foundation's lawsuit to overturn the listing of the polar bear: when the government's population studies forecast a viable population of a species for the foreseeable future, there is neither reason nor authority to list that species under the Endangered Species Act. The government believes that there will be approximately 20,000 polar bears as we approach 2050, yet somehow concludes that this means the polar bear is a threatened species. This is a misuse of the Endangered Species Act, hence PLF's lawsuit.

In the meantime, it's good to see that the Washington Times has taken notice that numbers and conditions behind the polar bear's ESA listing don't add up.

PLF leads "Save Our Water" petition press conference

Author:    Damien M. Schiff

Yesterday, Pacific Legal Foundation held a press conference at the Capitol in Sacramento to notify Governor Schwarzenegger and President Obama that PLF has collected over 12,000 signatures to its "Save Our Water" petition.  The petition asks Governor Schwarzenegger to request the Secretary of the Interior, Ken Salazar, to convene the Endangered Species Committee (commonly known as the "God Squad") to provide immediately relief to California's beleaguered San Joaquin Valley.  PLF President Rob Rivett mc'ed the conference.  Also speaking were Representative George Radanovich, California State Senator Jeff Denham, and Fresno businessman Piedad Ayala.  For coverage on the event, see here and here.  For background videos, see here and here.

Reason article on California Coastal Commission abuses

Author:    Damien M. Schiff

PLF runs a Coastal Land Rights Project, whose principal goal is to fight on behalf of coastal property owners against big and abusive government.  One of the most frequent violators of individuals' property rights in coastal areas is the California Coastal Commission.  PLF has been successfully fighting against the Commission since its landmark 1987 Supreme Court victory in Nollan v. California Coastal Commission.

But PLF is not the only one that has noticed the abusiveness of this state agency.  Richard Oshen, a California filmaker, has recently produced a documentary entitled Sins of Commission that details the many rights violations committed by the Commission.  Reason Magazine has this fine article on the film.

Lawsuit filed over vetoed flood control project

Author:    Damien M. Schiff

Last week, PLF's attorneys filed suit in federal court in Mississippi challenging the Environmental Protection Agency's veto, under the Clean Water Act, of a vitally important flood control project in the Mississippi South Delta.  The case is captioned Board of Mississippi Levee Commissioners v. USEPA. Read more about the lawsuit here and here.

Some good insight into the Air Resources Board

Author: Joshua Thompson

Leslie Eastman has a two-part series (Part 1, Part 2) on the California Air Resources Board (CARB) that is worth a read.  Part 1 discusses how CARB regulations, recently enacted diesel regulations in particular, hurt California business.  Part 2 is centered on how CARB regulations fail to address the "real problems."  Part 2 is especially interesting, because it discusses PLF's lawsuit against CARB at length. 

"Some businessmen are fighting back. Norman “Skip” Brown, President of Delta Construction Company for the past 44 years, is taking CARB to court. The Pacific Legal Foundation is representing Brown and eight other California business owners in a lawsuit that aims to ensure accountability in the regulatory process and challenges the appointment process that seemingly empanels CARB regulators for life terms."

Ms. Eastman also has some great suggestions for Californians who want to fight back.  Though all are good suggestions, I especially like number 2: "Support the Pacific Legal Foundation so they can aggressively and successfully conclude the case on behalf of the plaintiffs."

Thank you for your support, Ms. Eastman.  We will continue to fight!

The State Bar of California ... ugh

Author: Joshua Thompson

The President of the one-and-only State Bar of California, the agency that tells me I can practice law in California, recently wrote this "article."  The piece revolves around the nomination of Judge Sotomayor.  The article starts fine, saying, "[i]ntelligence, practicality, knowledge of the law and skill at learning new and emerging areas of law, ability to evaluate and weigh the facts fairly" are necessary to evaluating judges.   Who can't agree with that?  But then the article takes a turn by attempting to defend Sotomayor's "wise Latina" comment. 

The author notes how Plessy v. Ferguson, a decision holding "separate but equal" facilities for white and black people constitutional, was decided by "wise white men," and doubts whether with a person of color on the bench, the Court would have ruled the same way.  The author also doubts whether Korematsu v. United States, a case finding internment of Japanese-Americans during World War II constitutional, would have been decided the same way with a Japanese-American sitting on the bench.

From these select cases the author comes to the conclusion that, "Adding the perspective of a 'wise Latina woman' justice or of any person with such diverse life experiences to the Supreme Court cannot help but enrich their discussions and, as a result, make their decisions more reflective of the entirety of the American experience."  

However, "diverse life experiences" does not make a good Supreme Court justice.  "It’s not the heart that compels conclusions in cases, it’s the law. ... [Judges] apply law to facts. [Judges] don’t apply feelings to facts."  Those statements were made by Judge Sotomayor.  She too recognized that her "wise Latina" comment was silly.  "It left an impression that life experience commanded a result in a case but that’s clearly not what I do as a judge."

Unfortunately, the President of the California State Bar does not agree.  Per the President of the State Bar, the Supreme Court should, in part, be determined by skin color, ethnicity, sex, marriage, hair color, pet ownership, and everything else that makes up one's "life experiences."  On the bright side, thanks to PLF, my bar dues don't have to go to the Bar's political causes.  Rest assured, I will take special pride in checking the box to make sure my money doesn't go this year.

Victory in Clean Water Act appeal

Author:    Damien M. Schiff

Last week in Simsbury-Avon Preservation Society v. Metacon Gun Club, the Second Circuit Court of Appeals issued a commonsense decision that the firing of lead bullets over dry land does not violate the Clean Water Act prohibition on the discharge of a pollutant into waters of the United States.  In the case, local activists claimed that a shooting range was a wetland and that spent ammunition was polluting the site and surrounding areas.  But the appeals court agreed with Pacific Legal Foundation, whose attorneys represented the gun club, that the site did not meet the federal definition of wetlands and the plaintiffs had produced no real evidence of any pollution, on- or off-site.  The federal government participated as amicus in the case to advance its interpretation of the Supreme Court's recent Clean Water Act jurisdictional decision, Rapanos v. United States.  Because the Second Circuit determined that no discharges had occurred on the gun club's property, the appeals court avoided the Rapanos jurisdictional issues.

Straight Talk on the Smelt

PLF attorney Damien M. Schiff will be appearing on Libertarian Counterpoint tonight, 8/6, at 8:00 PM and again next Thursday, 8/13, at 8:00 PM. On the 8/13 show he will be discussing the Delta smelt case.  These shows stream live at www.accesssacramento.org, click on channel 17.  Replays are at noon on 8/7 and 8/14 and 4:00 AM on 8/8 and 8/15.

California Air Resources Board and bad science

Author: Damien M. Schiff

Temple of Mut has a good post on the deficiencies in toxic air pollutant regulations put out by the California Air Resources Board (CARB), in conjunction with its Scientific Review Panel (SRP).  Specifically, the post takes aim at the faulty scientific foundations for CARB's landmark 1998 designation of diesel emissions as a significant threat to human health and the environment.  That 1998 designation has formed the basis of recent, draconian emissions regulations that threaten to destroy California's trucking and construction industries.  In response to this regulatory crisis, PLF has filed a lawsuit in California state court challenging the current make-up of the SRP, many of whose members have been "holding over" past their terms for years.  PLF's lawsuit, Brown v. Adams, seeks an order from the court directing that fresh faces be placed on the SRP.  The hope is that new blood may help the SRP, and CARB, recognize that emissions regulations must be based on sound science, to ensure that millions of Californians do not needlessly suffer economic distress.

The inevitable decline of preferential treatment?

Author: Joshua Thompson

I highly recommend this LA Times opinion piece from Sunday.  The author recounts a sad episode in 1941 when her father, the lone African-American on Harvard's lacrosse team, was prohibited from playing in a match against the Naval Academy.  Harvard sent her father home, and played the game with their white players, so as not to forfeit the game.

The piece reminded me of similar situation confronted by the University of Buffalo football team in 1958.  There, the team finished the season 8-1, was invited to the Tangerine Bowl to face Florida State, but the leaseholders of the stadium refused to allow Buffalo to play unless its two African-American players did not come.  Buffalo responded by not playing in the game, even though it was the school's first-ever bowl game invitation.