- Power to regulate interstate commerce includes power to keep property owner from evicting a prairie dog? Sounds rational to Tenth Circuit [Ilya Shapiro and David McDonald]
- Dimock, Pa. episode was central to anti-fracking lore including movie “Gasland,” now judge has overturned $4 million verdict in case [Timothy Cama, The Hill]
- “EPA Employees Organize Against Taxpayers” [NPR via David Boaz on Twitter]
- Sweetheart consent decrees (“sue and settle”) enable agencies to bypass notice-and-comment rulemaking in adopting controversial rules, as with EPA natural gas plant rule [WLF]
- Judge rebukes Delaware Riverkeeper in FERC pipeline case [Erin Mundahl, Inside Sources]
- On the way out, President Obama designated vast tract of Atlantic ocean as “monument,” forbidding commercial fishing. Irrational as policy, as law, and as procedure [Jonathan Wood]
On Tuesday President Trump signed an executive order directing the Environmental Protection Agency to reopen the rulemaking process to reconsider its assertion of jurisdiction during the Obama years over large tracts of land remote from navigable water. “The regulation, known as the Waters of the U.S. rule, broadened the definition of the type of water body that would fall under EPA’s formidable clean water enforcement powers, making everything from streams to ditches and watering holes subject to the EPA’s and Army Corps of Engineers’ oversight.” [Washington Examiner; Jonathan Adler]
Good. This was an outrageous regulatory power grab. If Congress decides that it has some Constitutional authority to seize control over seasonal moist depressions on farmland, it should say so explicitly. And if it does, it might want to prepare to set aside large sums under the Fifth Amendment, which states that “private property [shall not] be taken for public use, without just compensation.”
“At least 32 states have sued to prevent the new regulations from taking effect, and the Sixth Federal Appeals Circuit Court stayed the new rules in October, 2016.” [Ronald Bailey, Reason] When you manage to tick off 32 states badly enough for them to sue, you might have gone out on a limb. More: AP, Jonathan Wood.
- “Rockefeller Foundations Enlist Journalism in ‘Moral’ Crusade Against ExxonMobil” [Ken Silverstein] Massachusetts was using courts to investigate heretics back before the oil industry was even whale oil [Reuters on subpoena ruling] Washington Post shouldn’t have run Sen. Sheldon Whitehouse (D-R.I.) on climate politics without noting his brutal efforts to subpoena/silence opponents on that topic;
- “Should you go to jail if you can’t recognize every endangered species?” [Jonathan Wood]
- Sandy Ikeda reviews Robert H. Nelson, Private Neighborhoods and the Transformation of Local Government [Market Urbanism]
- D.C. Circuit shouldn’t let EPA get away again with ignoring cost of power plant regs [Andrew Grossman on Cato amicus brief]
- Under what circumstances should libertarians be willing to live with eminent domain in the construction of energy pipelines? [Ilya Somin and earlier] Economic benefits of fracking are $3.5 trillion, according to new study [Erik Gilje, Robert Ready, and Nikolai Roussanov, NBER via Tyler Cowen]
- “Dramatically simpler than the old code…[drops] mandates for large amounts of parking.” Buffalo rethinks zoning [Aaron Renn, City Journal] Arnold Kling on California’s housing shortage; John Cochrane on an encouraging Jason Furman op-ed; “Zoning: America’s Local Version Of Crony Capitalism” [Scott Beyer]
- YIMBY (Yes In My Back Yard) movement in San Francisco, other cities says build more housing to tame housing costs [Alex Tabarrok] Zoning laws sometimes respond to tiny-house movement, and sometimes don’t [Curbed]
- Federalist Society convention panel on Justice Scalia’s property rights jurisprudence with John Echeverria, James W. Ely, Jr., Roderick Hills, Jr., Adam Laxalt, Ilya Somin, Judge Allison Eid moderating;
- Your regulated residence: “Santa Monica Moves to Make All New Homes Net-Zero Energy” [Mental Floss]
- “King County, Washington, Caught Digging Through Residents’ Trash” [Christian Britschgi/Reason; see also on Seattle composting regulations]
- “EPA to big cities: Stop killing rats with dry ice” [Aamer Madhani, USA Today]
- “Policing for profit in private environmental enforcement” [Jonathan Wood; Clean Water Act citizen suits]
- 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]
- Richard Pipes: “Private Property Sets the Boundary of the State” [Istituto Bruno Leoni video via Arnold Kling and Alberto Mingardi; my 1999 review of Pipes on property]
- “‘Housing is a human right,’ says [L.A.] group founded for the sole purpose of preventing new housing from being built” [@MarketUrbanism]
- “EPA Putting Red Light on Amateur Car Racing” [Kenric Ward, Reason]
- Publicity stunts in our time: “Gov. Rick Snyder target of RICO lawsuit over Flint water crisis” [Flint Journal]
- Speaking of which: lawsuit “on behalf of the future” in Oregon federal court seeks to represent youth against the federal government and major energy companies [Eugene Register-Guard]
- Some things to expect as autonomous vehicles take over, including the freeing up of a lot of expensive stuff and space urban areas [Johnny Sanfilippo, Market Urbanism]
Billboards in Washington state urging tougher environmental regulations on farmers were funded by (if this still comes as any shock) the federal taxpayers, through a grant program of the U.S. Environmental Protection Agency. And that wasn’t disclosed, although by agency rule it was supposed to be. [Don Jenkins, Capital Press] A few months ago EPA got caught illegally expending tax money to stir up pressure on Congress to support a wider interpretation of its own powers on the “Waters of the United States” rule. More on advocacy funding here.
Related, from way back in 1999, “Smart Growth at the Federal Trough: EPA’s Financing of the Anti-Sprawl Movement” by Peter Samuel and Randal O’Toole, Cato Policy Analysis #361:
The federal government should not subsidize one side of a public policy debate; doing so undermines the very essence of democracy. Nor should government agencies fund nonprofit organizations that exist primarily to lobby other government agencies. Congress should shut down the federal government’s anti-sprawl lobbying activities and resist the temptation to engage in centralized social engineering.
In 2011 we wrote about the remarkable case in which Opelousas, La. plant manager Hubert Vidrine “won a rare $1.7 million verdict against the federal Environmental Protection Agency (EPA) for malicious prosecution, with a judge lambasting EPA’s enforcement apparatus for ‘reckless and callous disregard’ of Vidrine’s rights.” According to a local paper’s report, a federal officer “was accused of targeting Vidrine because of his outspokenness and choosing an investigation in Louisiana to be close to a woman with whom he was having a sexual affair.” Defenders of the agency were at pains to portray it as an “unusual situation.”
Now there’s an update to report [FindLaw, h/t Institute for Justice “Short Circuits”]. The factory’s owner, Trinity Marine Products, had also been prosecuted in the case, but was not involved in Vidrine’s personal quest for justice afterward:
According to court documents, Trinity wasn’t even aware of the federal agents’ affair and its concealment until 2011 when one of Trinity’s employees read a blog post mentioning the affair and a DOJ press release giving details. Trinity promptly filed a FTCA claim in 2012.
The question was whether the company’s claim was untimely under the statute of limitations because the prosecution had been nine years earlier. A Fifth Circuit panel has now ruled that the suit can go forward under equitable principles because the government had not established that Trinity could by reasonable diligence have learned the reason for its injury earlier. FindLaw again:
The fact of the matter is this: the blog piece was only written because there was an unsealing of court documents that had detailed the motive behind the FBI agents’ lies. And since these lies were the cause of Trinity’s eventual injury (criminal indictment), no reasonable due diligence would have uncovered them.
- On the Flint water fiasco, building for many months now, multiple levels of governments have plenty to answer for [Detroit News (“Lower-level [state DEQ] officials continued to downplay severity of Flint’s drinking water problems for almost 3 more months.”), The Hill and Detroit News (EPA), earlier and on government impunity] More: David Mastio, USA Today (even after fiasco, prevailing blood-lead levels in Flint children greatly improved from ten years ago); Rob Sisson/ConserveFewell; Matt Pearce/L.A. Times.
- Background on Oregon standoff: what would a market-based federal lands grazing program look like? [Randal O’Toole, earlier on Malheur refuge occupation here, here]
- “Trying to Build a Catskills Resort Despite Mountains of Regulation” [Cori O’Connor, WSJ]
- “Next stop for Paris climate deal: the courts” [Politico] Chart overview of climate change litigation in U.S. [Arnold & Porter via Kyle White, Abnormal Use]
- “The emerging cross-ideological consensus on zoning” [Ilya Somin] “Zoning Laws Transfer Wealth in the Wrong Direction” [Noah Smith]
- Time for Supreme Court to revisit its doctrine on exhaustion of state litigation remedies in takings cases [Ilya Shapiro, Cato]
- Pulitzer logrolling, politicization of Columbia J-school are old stories, but vendetta against Exxon adds a few new twists [Fraser Seitel, O’Dwyer, earlier]