PLF Liberty Blog

9th Circuit declines to rehear National Parks & Conservation Assoc. v. BLM (Kaiser Eagle Mountain case)

Author: Brandon Middleton

Yesterday the Ninth Circuit Court of Appeals declined to reconsider its November 2009 decision in National Parks & Conservation Assoc. v. Bureau of Land Management (available here), in which it held that a BLM land exchange with Kaiser Eagle Mountain, Inc., was improper under the National Environmental Policy Act.

The land exchange was supposed to be a win-win for all parties concerned.  Kaiser would give the government 2,800 acres of private land near other BLM lands and within an area designated as critical habitat for the desert tortoise--this would allow the government to better manage the tortoise and other species through enhanced contiguous federal land in Southern California.

In exchange, Kaiser would receive 3,500 acres of public land, land that was virtually valueless due to its proximity near an abandoned iron ore mine.  The public land, however, was better situated for Kaiser, and it would enable the company to develop a much needed landfill in Riverside County.  This landfill would address what has been described as a "critical need for additional disposal capacity" in Southern California and would have been the first to comply with new federal landfill guidelines, making it one of safest and environmentally sensible landfills in the world.

But, in a lawsuit brought by environmental groups, the Ninth Circuit determined that BLM was wrong to consider Kaiser's interest as a for-profit, private company in the land exchange.  According to the court in its November 2009 decision, BLM's approval document was illegal because it "sets out three private objectives as defining characteristics of the proposed project."

With yesterday's decision by the Ninth Circuit not to rehear National Parks, who knows what Kaiser (a company that has spent 20 years and $50 million in its attempts to get the project approved) will do next?  But, needless to say, there's a lot not to like about what the Ninth Circuit has done in this case.  Here a few thoughts:

Bad news for the economy: EPA refuses review of CO2 "endangerment" finding

Author: Ted Hadzi-Antich

On July 28, 2010, EPA denied the petition by Pacific Legal Foundation to reconsider the agency's "endangerment" finding under the Clean Air Act, a finding that lays the groundwork for stringent regulation of greenhouse gases and could impose a crippling impact on the American economy. 

The denial was unwarranted and flies in the face of thousands of pages of evidence (sometimes referred to as the "Climategate" emails) questioning the data underlying the finding. 

In light of the Climategate revelations, PLF asked the EPA to reconvene the regulatory proceeding in order to afford the blue-ribbon Science Advisory Board the opportunity to review the Climategate data in detail and advise EPA whether the data requires a rescission or at least a serious reconsideration of the endangerment finding.

Unfortunately, EPA refused to allow the Science Advisory Board to review the Climategate evidence, casting a shadow over the entire regulatory proceeding.

PLF is in the process of analyzing EPA’s denial in detail and will determine its next steps. So far it appears that, by any fair yardstick, EPA’s refusal to send the information to the Science Advisory Board is based on politics and will have the effect of preventing further scientific review of the controversial data. The "Climategate" affair should have taught everyone that there is a need for greater openness in science; this is a lesson that EPA has not learned.

There is a 60-day window for PLF to challenge the denial in court.

Unheeded words of wisdom

Author: Timothy Sandefur

In a recent blog post I mentioned that liberals, no less than conservatives, ought to be very wary of expanding government power under the commerce clause. It turns out that Walter Lippmann (no conservative, he) made the same point eloquently at the very time that the Supreme Court was expanding that power:

The so-called liberals who today think that Federalism was invented by the Liberty League and is defended only by hirelings of the DuPonts did not have the same appetite for centralized government when they ran afoul of it in wartime and during the reign of the Anti-Saloon League. Nor will they have the same enthusiasm for it the next time they see a Congress which does not think as they do, a Congress, perhaps, which decides to regulate labor by imposing compulsory service in labor camps as a means of preparedness for war and a way of teaching men to take orders promptly. The current enthusiasms of the liberals for a centralized government of unlimited powers arise from the happy idea that only liberals will run that government.... [I]f they think there will never be a reaction again, their optimism is far greater than their good sense. They will make the greatest mistake of their lives if, while they are in power, they destroy the defenses they will desperately need when in the course of human events the people turn once more the other way.

Walter Lippmann, syndicated newspaper column, Feb. 4, 1937, quoted in Arthur Ekirch, Jr., Ideologies And Utopias: The Impact of The New Deal on American Thought 201-02 (1969).

Are all health care mandates created equally?

Author: Luke A. Wake

The federal government has only those powers specifically enumerated in the Constitution. The Constitution allows the federal government to regulate interstate commerce, including both economic activities and non-economic activities affecting interstate commerce. But, the mandate to purchase health insurance is not a regulation of any commercial activity, nor is it a regulation of an activity affecting interstate commerce. Simply put, the mandate to purchase health insurance regulates the individual simply because he or she exists, not on the basis of any activity he or she has chosen. But Congress cannot regulate inactivity under the Commerce Clause.

The uninsured individual stands entirely outside the field of commerce and therefore Congress would need to justify the mandate to purchase health insurance under a power other than the Commerce Clause. Yet that mandate is not justified under any other constitutional provision either.

Congress can regulate most actions under the Commerce Clause, but it simply cannot compel people to engage in commerce against their will. Congress can require that individuals cover the costs of their medical expenses, but it cannot out-right impose an obligation to buy health insurance. The regulation must be tied to some activity that the individual freely chooses..

So how is the mandate to buy health insurance different from the mandate that hospitals receiving federal monies must treat everyone in the emergency room, regardless of their ability to pay?

Unlike the health-care law, the hospital mandate actually is a condition (on the receipt of federal funds), not an outright mandate. The condition is likely justified by the courts' broad interpretation over the years of the Congress' spending power, not the Commerce Clause power.

California court rulings for Coastal Commission favor costly permiting process

Author:  Paul Beard

Imagine this scenario:  Your city grants you a permit to build on your land.  The permit is appealed—say, by some disgruntled neighbor—to a state land-use agency with limited authority to review locally approved projects.  You sue the state agency on the ground that it lacks the authority in your case to second-guess your permit approval. 

Next thing you know, the court dismisses your case.  The reason?  Your case is premature.  You are required to spend hundreds of hours and thousands of dollars on consultants, studies, and the like to defend your permit before the state agency—even if, at the end of the day, it turns out the agency never had the authority to drag you through its review process in the first place.

Sound bizarre? 

There's no such thing as a free birthday cake

Authors: Lana Harfoush & Anne-Marie Dao

Saturday marks what would have been Milton Friedman’s 98th birthday. What gift would you give a man of so many achievements? A Nobel Prize recipient in Economics, an inspiring force for many nations’ leaders, and a beloved professor at the University of Chicago, Friedman personally touched the lives of many people. But the number of those folks who knew him pales in comparison to the countless others whom he will never know, yet who will still be inspired by his work. Four years after his death, we write today to honor his legacy.

Spending, choice, and coercion

Author: Timothy Sandefur

A reader commenting on yesterday’s post about our lawsuit challenging the constitutionality of ObamaCare asked an interesting question, the answer to which can help illuminate the limits of federal power under the Constitution. “Since the federal government can mandate that hospitals receiving federal monies (e.g. Medicare/Medicaid) must treat everyone who presents in the emergency room, regardless of ability to pay,” writes the commenter, “why can’t Congress mandate that individuals must pay their fair share of that burden by buying a minimally satisfactory health insurance or pay an in-lieu amount of money?”

Bringing fresh eyes to California air regulation

Author:  Damien M. Schiff

A year ago June, PLF filed a lawsuit on behalf of a coalition of California construction and transportation businesses challenging the outdated appointments of members of the Scientific Review Panel on Toxic Air Contaminants (SRP).  The SRP is a group of scientists who advise the California Air Resources Board (CARB), the state's chief air quality agency, on whether certain air pollutants qualify as a danger to human health and should be regulated.  Perhaps most prominently, the SRP has determined that diesel exhaust qualifies as a toxic air contaminant, a decision that has led CARB to begin to impose ruinous emission standards on the state's already hardhit construction industry.

Press conference: state fines businessman for selling "worm poop" fertilizer

WHEN: Thursday, July 29, 2010, 2:00 p.m. PDT.

WHERE: California State Capitol, West Steps, Sacramento.

WHO: George Hahn, entrepreneur from Cardiff by the Sea, CA, and inventor of Worm Gold,

Timothy Sandefur, principal attorney with Pacific Legal Foundation.

WHAT:Press conference to protest the State of California’s $100,000 fine against entrepreneur George Hahn for not registering his non-toxic fertilizer made of worm feces as a "pesticide."  ( The hearing in PLF's lawsuit (on behalf of Mr. Hahn) against the state Dept. of Pesticide Regulation, is Friday morn.)

TO READ MORE ABOUT THE PRESS CONFERENCE AND THIS DISTURBING EXAMPLE OF THE STATE OF CALIFORNIA'S OVER-REGULATION OF SMALL BUSINESSES, VISIT THE LINK AT PLF'S WEBSITE.

Why PLF is challenging Obamacare: drawing a line in the sand

Author: Luke A. Wake

Yesterday PLF announced the filing of Sissel v. U.S. Department of Health and Human Services et. al. The suit challenges the PPACA's mandate that individuals must purchase health insurance against their will on Commerce Clause grounds. Yet some people are wondering what makes our suit different from the Attorney Generals' suits in Florida and Virginia, and why PLF stepped into this legal battle?

First and foremost, I want to emphasize that we represent an individual whose rights are being violated by the mandate. Our client, Matt Sissel, is being forced to buy health insurance against his will. At this point, he is being injured by that requirement because he must rearrange his finances in anticipation of this government imposed financial burden. Moreover, he is going to have to pay costly fines to the IRS if he continues to exercise his liberty to remain uninsured. So we are challenging the mandate because Sissel's rights are being violated, and because his liberty is being encroached. Whereas the Attorney Generals' suit represents the interests of the states, our suit represents the interests of everyday American citizens like Sissel. Our suit is about individual rights, and taking a stand against the federal government's command and control over our lives.

Secondly, it is only natural that we should bring a challenge against the individual mandate because PLF is the nation's leading litigator for liberty and individual rights; nobody is a stronger and more successful defender of our constitutional principles of limited government. Over the years, we have gained special expertise in Commerce Clause litigation.

Title IX has outlived its purpose

Author: Joshua Thompson

Over at ESPN.com, Gregg Easterbrook, has this excellent piece on the latest ridiculous Title IX ruling.  Here's a snippet:

Imagine telling marchers on the Edmund Pettus Bridge in Selma, Ala., in 1965 that by 2010, "civil rights" would be privileged college kids complaining about sports schedules, while federal judges would say that a grandly named Office for Civil Rights should dictate which teams get to use a college gym.

There is no "civil right" to be on a volleyball team! If you hope to continue to play women's volleyball in college, it's up to you to transfer to a college that offers the sport rather than run to the courthouse demanding special favoritism. In turn, Quinnipiac University's athletic department budget-allocation decisions have no place in a federal court, particularly when the college already offers significantly more women's sports teams than men's. A 95-page court ruling on a college volleyball budget sounds like a Monty Python sketch -- because Title IX itself has become a Monty Python sketch.

Go further into the judge's decision and find that both plaintiffs and defendants fielded dueling "expert" witnesses testifying on who counts as a "participant" in women's track and field. The plaintiff's expert witness makes part of her living testifying in Title IX lawsuits. It's a sign of legalism run amok when lawyers and consultants get fees for arguing over whether college students should receive school-sponsored volleyball outfits. The decision includes a good 20 pages of hair-splitting arguments regarding exactly how many members the school's various teams have -- and in the case of field hockey, whether Title IX would be satisfied if there were 24, 22.2 or 22.7 women on the Quinnipiac team. If Quinnipiac, or any college, had hundreds of men in organized sports but hardly any women, that would be discrimination. This legal case, however, concerns such ultratrivia as whether Quinnipiac's "roster management system" should have listed 31 boys on the men's baseball team when the NCAA average is 33.3! Get this junk-science lawsuit out of the courts!

You can read the rest here.

Oregon board finds airport easement ordinance unconstitutional

Author: Daniel Himebaugh

The Oregon Land Use Board of Appeals has ruled that a City of Hillsboro ordinance requiring property owners to dedicate an avigation easement as a condition on property development is facially unconstitutional.  The ruling affects over 7,000 parcels located near the Hillsboro Airport, according to the weekly newsletter Airport Noise Report.

The City's ordinance required property owners to dedicate an easement allowing the City to expose the property owners to noise, vibrations, fumes, dust, and fuel particle emissions associated with airport activity.  Instead of compensating the property owners for the interference, however, the ordinance required property owners to give up the easements in exchange for permission to engage in normal development activities.

The board ruled that the easement failed to meet the test set out in the U.S. Supreme Court case Nollan v. California Coastal Commission, which provides that development conditions must be related to alleviating an identified public problem caused by the impact of the proposed development.  This is known as the "essential nexus" rule and keeps government from extorting property owners to obtain property interests that the government would normally have to purchase.

PLF principal attorney Meriem Hubbard, who litigated a similar case involving an avigation easement in California, is quoted in Airport Noise Report:

The problem in this case is that the government tried to take a short cut by saying that, if you want a building permit or other land use approval, you need to give us an avigation easement free of charge.  That can only be done if the proposed development creates the problem that will be solved by the dedication of an avigation easement. . . .  [T]he City is probably requiring these easements in order to avoid being sued for a physical taking of property due to noise, light, emissions, etc., created by aircraft flying overhead.  If a property owner brings such a lawsuit, and wins, then the government will have to purchase the property outright.  An easy way to avoid such lawsuits is to get an easement from the property owner.  Government knows that property owners won't give an easement (a property right) willingly, so they make it a condition of a permit allowing you to do something on your property (for example, build a house or pool, remodel, put in a new air conditioner).

The City has appealed the board's ruling to the Oregon Court of Appeals.

The public interest: not just for the Left any more

Author: R. S. Radford

Public interest law is a term that was coined around 1970, essentially to provide cover for left-wing foundations to channel tax-free dollars to activists who would use the courts to advance a radical social agenda.  Most people still consider public interest law to be a euphemism for Leftist activism in the judicial arena.  There are at least seven student-edited law reviews that refer to public interest law in their titles; their contents are uniformly devoted to topics of “social justice,” “economic justice,” “diversity,” “underrepresented populations,” “LGBT issues,” and similar liberal buzzwords.  What is never addressed, of course, is exactly how or why a Leftist slant on social and political issues, as opposed to any conflicting viewpoint, equates to “the public interest.”

This unspoken assumption was shaken in 1973 by the formation of Pacific Legal Foundation, a nonprofit legal center funded entirely by charitable contributions, that advocates judicial protection of individual rights as opposed to group entitlements.  The howls of outrage from the Left still haven’t died down, but the passage of time has proven that a litigation program that supports property rights and opposes racial favoritism advances the public interest in a very literal and tangible sense.

Even academia – often the last institutional barrier to new ideas – has begun to get the message.  A pair of scholarly studies published in 2008 analyze the emergence of public-interest legal foundations with a libertarian or conservative focus.  Ann Southworth’s Lawyers of the Right (University of Chicago, 2008), while clearly holding the subject at arm’s length, at least penetrates the topic sufficiently to illustrate that non-liberal public-interest law is a complex, multifaceted, and sometimes contradictory amalgam of diverse causes and viewpoints.  Southworth breaks new ground in analyzing the role of the Federalist Society and the Heritage Foundation as “mediator groups” that – at least in theory – provide the proverbial “big tent” within which public interest groups oriented toward social conservatism, economic conservatism and libertarianism can find common ground.

Like Lawyers of the Right, Steven M. Teles’ The Rise of the Conservative Legal Movement (Princeton University, 2008) highlights the many different perspectives on the public interest that exist outside the paradigm of left-wing legal foundations.  Although it is a source of many valuable insights, Teles’ book is marred by the peculiar misconception that the earliest non-liberal public interest legal foundations (e.g. PLF) failed and were replaced by new and improved organizations like the Institute for Justice.  Obviously, PLF is both gratified and flattered to have outstanding organizations like IJ following the path we blazed, and we sincerely look forward to the day these groups will match our record at the Supreme Court.  But in the meantime, someone should point out to Prof. Teles that reports of our death have been greatly exaggerated!

Respect the blog: legal scholars' increasing reliance on law blogs

Author: Brian T. Hodges

Although the legal profession is quick to adopt any new technology or gadgetry that could improve productivity, when it comes to legal scholarship the profession has ... well ...  more than its fair share of Luddites.  The prevailing attitude that was beaten into my head back in law school was that if it ain’t chiseled in stone, it ain’t worth a second glance.  I was surprised, therefore, to read last week’s post on Concurring Opinions reporting on the increasing reliance on blogs in legal scholarship.

Since 2006, legal journals have cited law blogs 5,460 times, with prominent blogs like The Volokh Conspiracy racking up over 400 citations.  PLF's Liberty Blog was cited by legal journals in 2009 and 2010.

Judicial reliance on law blogs, however, is lagging behind legal scholars.  Over the same 4 year period, judicial decisions have cited blogs a paltry 39 times.  As law blogs continue to gain respect in the legal community, I would not be surprised to see this number increase.

PLF files Commerce Clause challenge to Obamacare

Author: Luke A. Wake

The Pacific Legal Foundation has announced the filing of a suit against Obamacare's requirement that every individual must purchase and retain health insurance. We represent Matt Sissel, an Iowa resident who served his country proudly as a medic in Iraq; Sissel is self-insured and does not want to purchase health insurance, but Uncle Sam is trying to force him to do just that. We're rolling up our sleeves to fight for his right to remain uninsured, and for the liberty of every American to do just the same.

This suit is about holding the federal government in check and halting its ever-expanding web of control over our lives. We are litigating this case to make clear that the Constitution places real and meaningful limitations on Congress' power.

Visit our website for more information on the case, or to review our complaint.