The Florida Beach Case Comes to Supreme Court: A Badly Flawed Test Case for Property Rights Advocates
On Wednesday, the U.S. Supreme Court will hear oral argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection. By the time they finish hearing from both sides, the justices may wonder whether this case was worth their time and effort. (My amicus brief on the case is here).
Petitioner is a small non-profit organization whose members own coastal properties in two communities along the Florida panhandle. Petitioner’s primary argument is that its members suffered “takings” of their property interests within the meaning of the Takings Clause of the Fifth Amendment.
The case potentially raises two interesting questions, but for various reasons the Court may well find itself incapable of addressing the merits of those questions. In any event, the Court will not likely disturb the judgment of the Florida Supreme Court rejecting petitioner’s case.
The first issue is whether a Florida state agency and local governments “took” private property by authorizing and implementing a program designed to restore ocean shorelines ravaged by hurricanes. The program involves dredging large quantities of sand from the ocean bottom and depositing the sand along the water’s edge to rebuild the beach and create a buffer against future …
Perhaps caught up in the spirit of the holiday shopping season, a large number of industry bargain hunters have been busy seeking great deals on regulatory relief at the White House's Office of Information and Regulatory Affairs (OIRA) in recent weeks. To be precise, the bureau hosted no fewer than 11 meetings with corporate interests regarding seven different regulatory issues between November 4 and November 16.
The meetings covered a range of topics. One meeting saw representatives of Shell Oil Company complaining about EPA’s proposed rule on fuel and fuel additives under the renewable fuel standards program mandated by the 2007 Energy Independence and Security Act. In a second meeting, representatives of the beef and poultry industries met with OIRA officials to attack a proposed Department of Agriculture rule regarding nutritional labels for their products. Other meetings concerned NHTSA’s updated CAFÉ standards; EPA’s rule …
This morning, Toyota Motor Corporation announced it intends to replace accelerator pedals on about 3.8 million recalled vehicles in the United States because the pedals can get stuck in a floor mat. But the recall could still leave more than a million faulty cars on the road.
As I wrote earlier, there had been over 2,000 reports from the owners of Toyota cars that they have surged forward without warning reaching speeds of up to 100 miles per hour. NHTSA has investigated Toyota for runaway cars on eight separate occasions, but the agency only ordered two small recalls, which addressed floor mats and carpet panels. It is not apparent why the agency did not act more forcefully, and Congress should investigate that.
A problem with relying on recalls, as NHTSA often does to correct safety defects, is that not all vehicle owners will have the …
On Monday, CPR Member Scholars and others sent a memorandum to Senator Ben Cardin that addressed the constitutionality of S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act of 2009. At a Senate Subcommittee on Water and Wildlife hearing earlier this month, one witness contested the key provisions of S. 1816, asserting that they are unconstitutional with respect to the Tenth and Eleventh Amendments of the U.S. Constitution. The memo, signed by CPR Member Scholars Robert Adler, William Andreen, Holly Doremus, Daniel Farber, Robert Glicksman, Rena Steinzor, Dan Tarlock, and Sandra Zellmer; by University of Maryland School of Law Professors Jane Barrett and Robert Percival; and by CPR Executive Director Shana Jones and myself, concludes that S. 1816 is grounded in constitutional principles and supported by existing case law and statutes. With a bit of technical clarification, S. 1816 will deserve a clean bill of …
The Obama Administration is expected to issue revisions to Executive Order 12,866, which specifies how the White House Office of Management and Budget (OMB) supervises federal regulatory agencies as they develop regulations to protect health, safety, the environment, and more (see the full comments on the matter submitted by CPR's board members in March).
CPR President Rena Steinzor and Board Member Rob Glicksman have issued a backgrounder on the coming Executive Order -- explaining the context and setting out six specific criteria on which to judge the Order. They are:
- Does the new EO continue to require agencies to justify proposed rules by quantifying “benefits” in dollar terms only – thus inviting agencies to ignore benefits that defy such monetization?
- Does the new EO continue to apply a “discount rate” to benefits of regulatory protections that won’t be realized for several years to come? And if it …
As it nears the close of its first year in office, the Obama Administration has thus far failed to name half of the regional administrators for its ten regional offices of the U.S. Environmental Protection Agency (EPA); and it was only on November 5th that it named those five officials. The reason for the lengthy delay in making appointments to these posts is not immediately apparent. Perhaps the Administration is anxious to avoid stirring up any political controversies regarding particular appointees, whose designation may create discontent among elements of the president’s political coalition or fodder for partisan Republican attacks. Alternatively, the Administration—which has been quite slow to fill other high posts at EPA and some other federal agencies—may simply be way behind in “vetting” all candidates for federal appointments. Yet another possibility is that Administration officials may now be too preoccupied with other …
"Interior increases oversight of mountaintop mining" trumpets the AP, and "U.S. boosts coal mining oversight to fight pollution" says Reuters. That's in response to an announcement from Interior on Wednesday.
But on Coal Tattoo, and from NRDC and Sierra Club, one learns of a pretty different story.
Says NRDC's Rob Perks:
Why in the world would I have a problem with this? As I previously posted on the apparent "slow-walk" on this issue by the Interior Department, Interior Secretary Ken Salazar knows full well that President Bush's 'midnight regulation' loosened protections to allow coal companies to dump mining waste directly into streams, and he favors revoking that rule change to restore original "stream buffer zone" protections that were enacted back in 1983. But rather than having his agency propose that change right away and proceed straight to public input, the Interior Department's …
On Monday, OMB Director Peter Orszag sent a letter to Rep. Ed Markey, responding to Congressman Markey’s concerns about OMB’s involvement in EPA’s Endocrine Disruptor Screening Program. Orszag’s letter -- released by Markey's office Wednesday -- explains, in no uncertain terms, that OMB is done meddling in EPA’s scientific determinations about endocrine-disrupting chemicals. It’s a step in the right direction for Orszag and OIRA Administrator Cass Sunstein, who have their work cut out for them if they are going to -- I hope -- work to halt OMB’s historical penchant for interfering in EPA’s work.
Congressman Markey’s concerns about OMB involvement in the EDSP were stoked by the same events that prompted the letter that CPR Board Member Robert Glicksman and I sent to Mr. Sunstein and his colleague Dr. John Holdren of the OSTP. We saw a trail of documents suggesting …
A few months ago, I wrote about a landmark agreement by the EPA to set numeric, statewide nutrient pollution limits -- the first of its kind in the United States. Florida, like most states, has qualitative nutrient pollution limits, which are written in terms such as, “in no case shall nutrient concentrations of body of water be altered so as to cause an imbalance in natural populations of flora or fauna.” Terms like this are difficult to measure objectively and consistently, endangering water bodies across the country and underlying the importance of this agreement by the EPA.
Back in August, the EPA had agreed to the settlement, but it still required approval by a judge. On Monday, U.S. District Judge Robert Hinkle approved the agreement, dismissing arguments by opponents -- agriculture and paper interests, local governments, and even the state Attorney General and Agricultural Commissioner -- that the EPA …
In October, Senator Ben Cardin (D.-Md.) introduced the “Chesapeake Clean Water and Ecosystem Restoration Act of 2009,” signaling the beginning of a new era of federal commitment to Bay restoration. The legislation is a tremendous step in the right direction, and it includes many elements to help make the Bay Program and the Bay-wide Total Daily Maximum Load (TMDL) models for watersheds across the country. In addition to the inclusion of mandatory implementation plans and enforceable deadlines, the legislation also establishes a nutrient trading program in the Bay watershed.
Nutrient trading works where regulated entities are required to meet certain pollution caps, either in their National Pollution Discharge Elimination System (NPDES) permits or in an applicable TMDL that is then incorporated into their NPDES permits. If the cost of implementing control measures is expensive, the regulated entities may seek to buy pollution credits from other entities …
