PLF Liberty Blog

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A whirlwind of unexpected twists in the Hurricane Katrina global warming suit

Author:  Luke A. Wake

Recently I posted on our filing in Comer v. Murphy Oil - a case that environmentalists hoped would open the floodgates for suits against large corporations as a back-door means of addressing the climate change issue. Here we had a couple property owners suing energy companies because their property had been damaged in Hurricane Katrina. Now normally damage caused by a hurricane is considered "an act of God." It is absurd to blame an individual or a company for causing harms resulting from natural events, but that is exactly what these litigants were doing; they argued that the energy companies had contributed to green house gases and that this had somehow resulted in climate change, which somehow made Hurricane Katrina more destructive than it would have otherwise been. 

The District Court thought this was too much of a stretch. In fact, the District Court dismissed the suit for lack of standing and because it presented a non-judicable political question. The plaintiffs then appealed to the 5th Circuit and the District Court's decision was reversed.

The Defendants then asked the 5th Circuit to reconsider the issues en banc and their petition was granted. The 5th Circuit vacated the panel decision, which had reversed the District Court, and was going to hear arguments - once more - on the standing and political question issues. But, after the panel decision had been vacated, new circumstances arose that caused one of the en banc judges to recuse himself. This meant that there were no longer enough judges to decide the case en banc. As such, the 5th Circuit determined that it no longer could hear the case and dismissed the appeal. Thus the original District Court decision is upheld, and the plaintiffs will have to appeal to the Supreme Court if they want to continue with their suit. If the high court agrees to hear their appeal, then we will submit an amicus brief on behalf of the energy companies once more.  

PLF's Timothy Sandefur to talk about worm droppings on the radio tonight

Author: Timothy Sandefur

Tonight, at 7:30 Pacific, I'll be talking with KOGO's Chris Reed about the case of George Hahn, the southern California entrepreneur whose fertilizer, Worm Gold, has been declared a "pesticide" by state bureaucrats, even though it's made of worm droppings--a natural part of all normal garden soil. You can learn more about that case here and here.

Favorable ruling in the Delta smelt case

Author:  Damien M. Schiff

Yesterday evening, the court issued its ruling on the preliminary injunction motion filed in the Delta smelt consolidated cases.  Below is a quick resume of the decision.  Bottom line, however, is that the cutbacks are illegal, but the court is not yet prepared to order immediate relief.

1. The baseline issue.  To determine whether a proposed action will jeopardize the continued existence of a listed species, the Fish and Wildlife Service must identify the environmental baseline, i.e., the way the world looks without the project.  Once that's been determined, the Service can then analyze the effects of the project.  In the Delta smelt cases, the plaintiffs argued that the Service misused computer modelling programs to determine what the Sacramento Delta would look like without the water projects operating.  On this argument, Judge Wanger sided in favor of the defendants.

"This highly technical dispute was not raised before the agency, and there were legitimate concerns about comparing Calsim modeling runs to other Calsim runs.  This choice of competing methodologies is not sufficiently clear error to justify the court's intervention.

Columbia University's eminent domain case

Author: Timothy Sandefur

Damon Root at Reason magazine has a story about the Columbia University eminent domain case. (That case is scheduled for oral argument before New York's highest court on Tuesday, and I will be live-blogging it over at InverseCondemnation.com that day.) Writes Root:

As lead attorney and former New York Civil Liberties Union executive director Norman Siegel has been able to prove thanks to reams of documents retrieved via the state’s Freedom of Information Law, Columbia and the ESDC actively colluded in order to produce the very conditions of blight that would then allow the ESDC to seize property on the university’s behalf. This documentary record, which Siegel carefully details in the legal brief he submitted to the Court of Appeals, offers a convincing and damning portrait of government malfeasance on behalf of an elite private institution.

In 2006, for instance, the ESDC hired the planning firm Allee King Rosen & Fleming, Inc. (AKRF) to perform an “impartial” blight study of Manhattanville. Yet as internal documents later revealed, the study was explicitly designed to rubber stamp the Columbia-ESDC agenda. In its initial outline, AKRF promised to “focus on characteristics that demonstrate blight conditions” and to emphasize “highlighting any physical blight that may be present.” In other words, the purpose of the report wasn’t to objectively determine if blight conditions were present, it was to “focus” on a pre-ordained conclusion that benefitted Columbia.

And AKRF was hardly a neutral party. Not only was the firm on Columbia’s payroll at that point, but at least six different AKRF employees were working on both the blight study and the redevelopment plan—a flagrant conflict of interests. Indeed, as New York’s Appellate Division, First Department concluded in an earlier decision related to the Manhattanville expansion plan, AKRF served an “advocacy function for Columbia” and suffered an “inherent conflict in serving two masters.”

(Read the rest...)

Environmental regulation: a threat to national security

Author:  Damien M. Schiff

Today's Vancouver Sun has this article about a recent statement from a group of Republican lawmakers charging that environmental regulations, including those for the grizzly bear, are hampering Homeland Security's efforts effectively to patrol the Washington-British Columbia border.

These protections have enabled criminals to target the areas for illegal and other dangerous activities. This remote Department of Interior and Department of Agriculture land can be targeted by drug smugglers, human traffickers and potential terrorists.

The statement is in response to a letter from Homeland Security Chief Janet Napolitano, in which she notes that "[g]overnment biologists claim agents in vehicles on some roads are detrimental to bears."

Making the case for freedom

Author: Timothy Sandefur

Steven Horwitz has an excellent series of brief blog posts (1, 2, 3) on how to make the argument for liberty--and how to avoid common pitfalls. Highly recommended.

Tide turns for victims of regulatory drought: government errors continue to mount; PLF appeals delta smelt regulations to 9th Circuit

Author: Brandon Middleton

The last couple of weeks has seen good news for Californians who have lost water and jobs as a result of the Endangered Species Act. But leave it to environmental groups to express dismay over Judge Wanger's decision to give humans a voice in the regulatory process:

"The last time around, he seemed to acknowledge that the fish had a value, so I don't know what he is thinking here," said Zeke Grader, the executive director of the Pacific Coast Federation of Fishermen's Associations. "This ruling doesn't seem to acknowledge the harm overpumping has done to the fish and the fishing communities. Instead, it appears to be judicial activism that could lead to the destruction of the Central Valley salmon stocks."

Judicial activism?  A decision to destroy Central Valley salmon stocks?

No, Mr. Greder, this was simply a common sense decision by the judge that the interests of species and humans must be considered by the federal government. And as the court's recent salmon biop ruling indicates, human beings were left high and dry by the National Marine Fisheries Service:

Federal Defendants completely abdicated their responsibility to consider alternative remedies in formulating RPA Actions that would not only protect the species, but would also minimize the adverse impact on humans and the human environment.

The California Coastal Commission: the real nuisance

Author:  Damien M. Schiff

This week, the City of Dana Point filed suit against the California Coastal Commission, alleging that the Commission has illegally asserted jurisdiction over the City's nuisance abatement ordinance.  The controversy arises out of the City's decision to close certain beach access paths late at night, owing to an increase in criminal activity.  The Commission contends that the City must get a coastal development permit first before it can close the paths.  The City's lawsuit argues that, because the Coastal Act specifically reserves to local governments the power to declare and abate nuisances, the Commission therefore has no power to demand that the City obtain a permit to enforce the path closures.

PLF is raising the same point in its ongoing lawsuit against the Commission on behalf of the Citizens for a Better Eureka.  In that case, the Citizens argue that the Commission has no appellate jurisdiction over the City of Eureka's nuisance abatement order directing a private landowner to cleanup a brownfield site located along Humboldt Bay.

More water for humans?

Author: Brandon Middleton

It looks that way due to a federal court ruling yesterday. But as the decision concerns only the federal government's salmonid biological opinion, it's not yet clear what the precise result will be--the government's delta smelt biological opinion, which has been overshadowed by the salmon biop in recent months, now takes on greater significance.  We'll have to wait and see how the delta smelt biop affects the possibility of increased water deliveries after yesterday's salmon biop decision.

We will continue to monitor the litigation, but I also recommend staying tuned to Aquafornia for the latest developments.

It’s Supreme Court season at PLF!

Author: Timothy Sandefur

The Supreme Court traditionally closes its session in late June, and often reserves its most controversial decisions for last. That means in the coming month we’ll be seeing a lot of news out of the Court, and here at PLF we’re waiting on decisions in cases we’re been involved in. (In fact, Lewis v. Chicago was just decided Monday.) Here’s the list of our Supreme Court cases this term:

More on the Supreme Court's decision in Lewis

Author: Joshua Thompson

Having had a day to reflect on the Supreme Court's decision in Lewis, my opinion hasn't changed much.  The most disappointing aspect of the case remains the Court's silence on the constitutionality of the disparate impact provisions of Title VII.  Less than a year since the Court appeared on the precipice of striking down the discriminatory provisions, the lack of any mention of the Equal Protection Clause is unfortunate. 

On the the question of the statute of limitations, while PLF argued for a contrary result, Justice Scalia's reasoning is not unreasonable.  PLF arguedthat since the disparate impact provisions are designed to thwart discrimination (a conceded point), their statute of limitations should run the same as Title VII's disparate treatment provisions (i.e. 300 days from the date of the intentional discriminatory treatment).  Justice Scalia rejected this approach. He wrote:

"For disparate-treatment claims—and others for which discriminatory intent is required—that means the plaintiff must demonstrate deliberate discrimination within the limitations period. ... But for claims that do not require discriminatory intent, no such demonstration is needed."

Indeed, as I have frequently pointed out, Title VII's disparate impact provisions require no discrimination whatsoever.  And as much as proponents of racial preferences have tried to label Chicago's actions here as discriminatory, they have done nothing even remotely discriminatory.  They administered a test in which the top scores of the test didn't fall evenly in proportion to the race of the test takers.  Nothing more.  The test is not alleged to have asked questions that were derogatory or racially biased.  The results didn't line up perfectly (or within 85%) of the takers -- and that is sufficient to show a disparate impact.

Do you know someone without health insurance?

Author: Luke A. Wake

If you are currently self-insured (i.e. un-insured) and you object to the requirement that you must now purchase health insurance or face tax penalties under the new health care legislation, you should contact Pacific Legal Foundation. We are currently looking for a self-insured individual, who is willing to step forward as a plaintiff in a suit to challenge the constitutionality of the "individual mandate" to buy health insurance. We believe that the federal government has no power to force you to buy anything against your will.

Indeed, the most insidious aspect of the legislation is its mandate that individuals must purchase health insurance, whether or not they want to. You would think that in a "free society" individuals should be free to refuse to purchase goods and services, but the drafters of the health care legislation don’t believe that we have any such right. For the first time in American history, the federal government is forcing Americans to buy something.

If the federal government can force us to buy insurance, it can force us to buy anything. We could be required to buy carrots or gym memberships to promote good health in America, or to buy stocks in preferred industries, for the good of the economy. We might even be required to purchase a new computer or new car every year to boost the economy. In other words, the health care legislation’s mandate that individuals must purchase health insurance sets a dangerous precedent, which would give the federal government new powers to entangle itself in our personal lives in a way it has never been allowed to do before.

Worm poop is...a pesticide?

Author: Timothy Sandefur

George Hahn is an entrepreneur who had an idea for a different kind of garden fertilizer—one made out of, yes, worm poop. Or “worm castings,” as they’re called in the trade.

Worm castings are a natural component of all healthy garden soil, and gardeners have long known that worms play a crucial role in making soil nutritious for plants. In fact, Charles Darwin himself wrote an entire book in the 1880s about the importance of worms in breaking down nutrients and helping plants to grow.

But Hahn’s fertilizer also helps make plants strong enough to resist infestation by bugs—and that’s where the trouble begins, because last year, bureaucrats at the California Department of Pesticide Regulation decided that Worm Gold is actually a pesticide, and can’t be sold in California without first being subjected to years of expensive scientific tests.

Most healthy plants repel bugs naturally by producing certain enzymes in their circulatory system. Simply put, they smell bad to pests. But when the soil is depleted or polluted, plants don’t create enough of the enzymes for the bugs to notice. By restoring the nutrients to the soil, Worm Gold helps plants resist bugs—just as eating healthy food will help you and me to resist infections by germs.

According to the Department of Pesticide Regulation, that makes Worm Gold a pesticide because they automatically classify any product as a pesticide if it’s promoted as causing pest “resistance” or “deterrence.” At a hearing last year, two of the Department’s officials even testified that they would classify water as a pesticide if it’s used to wash bugs off of plants. (And, in fact, organic gardeners frequently use water to keep aphids and other pests away from plants.) Even rat traps, or scarecrows, or barbed wire would qualify as pesticides under the Department’s interpretation!

In briefs filed today with the Sacramento Superior Court, we argue that this is unreasonably extreme. In fact, in a 1943 case, a California court rejected the Department’s effort to classify “gopher purge” as a pesticide. Like Worm Gold, gopher purge works by smelling bad to pests. The court held that the plant “was never represented as being a poison, or as being physically injurious to the gopher, or to be eaten by him, but only as being so obnoxious to his sense of smell as to discourage his presence in the immediate vicinity.” Thus it wasn’t a pesticide. In 1990, another court echoed this decision, noting that the Department has often “overstepped its authority.”

It may seem odd to be talking about worm poop—but it actually helps illustrate an important lesson. Ronald Reagan once said that the first goal of any bureaucracy is to protect the bureaucracy—but their second goal is to expand the bureaucracy. When California’s pesticide regulations were written, nobody expected that they would be applied to a natural substance that is already present in all natural soil anyway. But the bureaucratic imperative is to expand bureaucratic authority whenever possible. And the victims are not only hardworking entrepreneurs like George Hahn, but gardeners who want a natural, organic, safe alternative to dangerous chemical poisons.

More regulation, more job losses

Author: Brandon Middleton

Hugh Hewitt discusses the EPA's overzealous enforcement of the Federal Insecticide, Fungicide, and Rodenticide Act in today's San Francisco Examiner.