Posts Tagged ‘environment’

Write an ambiguous rule — then pounce

Government agencies can get an unfair edge in disputes with the regulated public if they can write ambiguity into their rules, develop interpretations that open up further ambiguities to suit their needs, and then when a dispute arises gain deference from courts on these doubtful interpretations-piled-upon-interpretations. In Foster v. Vilsack, the issue was whether a “prairie pothole” depression on a South Dakota farm should be deemed a federally protected wetland, denying the Fosters productive use of the land; the U.S. Department of Agriculture adopted what seemed a strained interpretation enabling it to so designate the land, and the Eighth Circuit deferred to it.

The decision actually afforded the agency “second-level” Auer deference, deferring to an interpretation of a vaguely written agency circular that interprets a vague regulation that in turn interprets a vague statute–all to get to a definition of “local area” that is nothing close to a natural and reasonable interpretation of that term.

Cato has filed an amicus brief on behalf of the farm family’s request for certiorari, urging the Supreme Court to revisit the Auer doctrine in administrative law at least to prevent its irrational extension:

Second-level Auer deference also undermines the rule of lenity — a traditional rule of interpretation stating that ambiguity in criminal statutes must be resolved in favor of the defendant — even more than first-level Auer deference already does. It effectively allows agencies to create new crimes (again without notice to the public) by doing as little as reinterpreting a footnote in a memo. Cato urges the Supreme Court take the case so that it may rein in the expansion of Auer deference and make it clear to administrative agencies that they cannot avoid judicial review by refusing to promulgate clear, unambiguous regulations.

[Trevor Burrus and David McDonald; more on Auer deference]

Louisiana coastal suits: pork-barreling on the bayou

The Baton Rouge Advocate’s headline sums it up: “Gov. [John Bel] Edwards quietly picks top donors to handle coastal suit that could result in big payday.” The suit, against oil and gas companies over the impact of energy operations on coastal erosion, could result in gigantic contingency fees if successful. More: Chamber-backed Louisiana Record (“Lobbyists for attorneys picked by Edwards for coastal litigation team hold fundraiser for governor”), The Hayride (governor twists arms of local governments to join suit), Daily Iberian (no go, says editorial), New Orleans Times-Picayune, more Advocate, Insurance Journal background. More: WWL (representing parish governments could be the real jackpot).

Appeals court: $18 billion Chevron Ecuador verdict a fraud, can’t be enforced

Just published: my new Storify on the ignoble demise of what had been billed as one of the world’s biggest human rights lawsuits, the so-called Lago Agrio case against Chevron over pollution in Ecuador. We’ve covered it for years, before and after the tainted $18 billion verdict obtained by attorney Steven Donziger, and the Storify feature links to many of our key posts. Big-name environmental groups like the Sierra Club,, and EarthJustice promoted Donziger’s case long after they had reason to know better.

Environment roundup

  • Subpoena turnabout not fair play: Congressional Republicans investigating state AGs’ climate advocacy probe are lobbing subpoenas at private enviro groups that urged the anti-speech campaign. Knock it off, two wrongs don’t make right [Eli Lehrer and earlier] “You don’t need complicated models to figure out what happens when governments censor speech. The evidence on that question is solid.” [Steve Simpson]
  • And speaking of fraud in policy advocacy (whatever that may mean) some varieties of it are plainly going to have no legal consequences whatsoever [Matt Welch channeling Virginia Postrel on California political class and high-speed rail]
  • Michigan attorney general Bill Schuette says 40 anti-pipeline activists gathered and beat on the front door of his home for 30 minutes with his wife alone there [Detroit News]
  • Pro-nuclear demonstrators blockade Greenpeace office in San Francisco, but wouldn’t the ultimate way to protest an odious environmental group be to respect the property rights of all concerned? [SFist]
  • “It’s a shotgun approach”: injury lawyers find many defendants to blame after Flint public water fiasco [NPR via Renee Krake, Legal Ethics Forum]
  • “District court voids Obama administration fracking regulations” [Jonathan Adler, Alden Abbott]

Proposal: traditional legal ethics should yield to climate interests

Speaking of infringements on what is now the scope of attorney-client privilege, an Oregon law professor has proposed to make environmental protection part of lawyers’ ethical duties. [Daily Climate; Tom Lininger, “Green Ethics for Lawyers,” Boston College Law Review, 2016; Scott Greenfield] Some backers hope the idea will encourage lawyers representing the fossil fuel industry, in particular, to disregard conventional attorney duties of loyalty to clients; indeed, it might someday serve as grounds for them to be disciplined if they refrain from betraying client interests in various situations.

Environmental roundup

  • Supreme Court should clarify whether agency has discretion to ignore any and all costs in designating Endangered Species Act habitat [Ilya Shapiro and Randal John Meyer on Cato certiorari amicus in Building Industry Association of the Bay Area v. U.S. Dept. of Commerce]
  • Unanimous decision in Corps of Engineers v. Hawkes is second SCOTUS ruling this year against Environmental Protection Agency, and umpteenth blow to its reputation [Ned Mamula, Cato]
  • Speaking of billionaires with vendettas against speech: Tom Steyer of San Francisco pushes New Hampshire attorney general to join probe of wrongful climate advocacy [Mike Bastasch, Daily Caller, earlier here, etc.]
  • “Modern zoning would have killed off America’s dense cities”: 40% of Manhattan’s buildings couldn’t be built today because they would violate a law [New York Times, Scott Beyer/Forbes]
  • And if anyone should know about tainting it’s them: United Nations human rights bureaucracy probes Flint water contamination [Associated Press]
  • Anti-fossil-fuel demonstrators block rail line and the Associated Press can’t find a single critic to quote [related, Shift Washington]

How one samurai judge handled positive externalities

In old Japan, it is said, the courts of Edo (now Tokyo) were presented with the complaint of a shopkeeper whose upstairs neighbor had enjoyed the delicious smell of his cooking without, as the plaintiff said would be fair, paying a price for it. To find out how the samurai judge cleverly resolved the complaint, read on…. [Dan Lewis, Now I Know]