OPINION/COMMENTARY

U.S. SUPREME COURT MUST LIMIT REACH OF CLEAN WATER ACT

The U.S. Supreme Court should rule that federal jurisdiction under the Clean Water Act does not extend to intrastate “wetlands” that are isolated hydrologically from “waters of the United States,” a public interest law firm argued in a friend of the court brief filed today. The brief was filed in a case in which the Supreme Court is reviewing a decision by the U.S. Court of Appeals for the Sixth Circuit that a Michigan man, his wife, and their companies violated the law when they conducted activity on lands that they own. The Sixth Circuit rejected the argument by John A. Rapanos that his lands are miles from navigable water and may not be regulated by the Environmental Protection Agency (EPA). “State and local governments were regulating wetlands long before Congress adopted the Clean Water Act and must, under the Constitution, be permitted to address, by themselves, activities that have been traditionally the sole province of those governments,” asserted William Perry Pendley of Mountain States Legal Foundation, which filed the brief. “Moreover, State and local governments as well as private conservation efforts are doing a much better job of protecting wetlands without the cost and burden of the federal government’s command and control regulatory policies.” John A. Rapanos and his wife Judith, through their wholly owned companies, own various parcels of land in Bay, Midland, and Saginaw Counties, Michigan, known as the Salzburg, Hines Road, Pine River, Freeland, Mapleton, and Jefferson Avenue sites. Over the years, Mr. Rapanos sought to develop these properties for commercial use. Although his properties are approximately twenty miles from the nearest navigable waterway, the EPA claimed jurisdiction over his land pursuant to the Clean Water Act. Mr. Rapanos was charged with and convicted of illegally discharging fill material into protected wetlands at these sites between 1988 and 1997....

Judges Deny Rehearing of Greenhouse Gas Lawsuit

The D.C. Circuit Court of Appeals has turned away an appeal from state authorities and environmental groups which sought to compel the Environmental Protection Agency to regulate emissions of carbon dioxide as a pollutant. The Court previously ruled that the EPA was not required to regulate CO2. "The voting majority of the D.C. Circuit deserves thanks for reaffirming the Court’s initial decision and keeping the judicial branch out of what is essentially a legislative question,” said Competitive Enterprise Institute Counsel Hans Bader. “Besides the fact that the plain language of the Clean Air Act grants no powers to the EPA to regulate carbon dioxide, any court-ordered solution to the controversy over greenhouse gas emissions would constitute a violation of the separation of powers. Clearly, Congress is the proper forum for such policy debates.” The suit, if successful, would have required the judges of the D.C. Circuit to craft an elaborate set of legislative responses, including determination of proper levels of greenhouse gas emissions, necessary reduction levels for each company and appropriate impacts on U.S. national security and international treaty negotiations, among others....

The Supreme Court Repeals the Constitution

An unidentified New York Surrogate Court judge famously said in 1866, “No man’s life, liberty, or property are safe while the legislature is in session.” Thanks to the U.S. Supreme Court we now know (if we needed reminding) that life, liberty, and property are in peril even when the legislature is not in session. That is the only reasonable conclusion to draw from the 5-4 decision last June in Kelo v. City of New London, the landmark eminent-domain case. The legal principles set out in the majority opinion go well beyond the government’s taking of private property for private (as opposed to “public”) use. The political philosopher and economist Murray Rothbard used to say that every principle devised to limit the power of government sooner or later becomes a way to expand it. For example, the divine right of kings was supposed to limit the sovereign’s power to execute God’s will. In time the principle came to mean that whatever the king did was by definition consistent with God’s will. The Supreme Court decision stretching the power of eminent domain to include redistribution of private property to assist private economic activity provides another example: the “takings clause” of the Fifth Amendment to the U.S. Constitution. The clause holds: “nor shall private property be taken for public use without just compensation.” Since, as the Supreme Court wrote in 1926, “it cannot be presumed that any clause in the constitution is intended to be without effect,” we have to read each word closely. In his dissent in Kelo, Supreme Court Justice Clarence Thomas did just that. He proceeded to show that “use” at the time of the framing meant the “act of employing”; that to construe the word more broadly would make the Takings Clause duplicative of powers already expressly delegated; and that the common law and great legal authorities such as Blackstone support this narrow reading of the word. Parsing the clause with great care, Thomas shows there is no reasonable reading but this: if the government wants to take a person’s property, it may do so only for public use (like a road or bridge) and only if the owner is fairly paid. Thus the Takings Clause was intended to be, Thomas wrote, “an express limit on the government’s power of eminent domain.”....

PETA Spins A Strategy For Kids: 'Bait & Tackle'

It's hard to imagine a more cynical communications strategy than targeting small children behind their parents' backs, lying to them, and then misleading a national TV audience about it all. But that's just what People for the Ethical Treatment of Animals (PETA) has done in a pair of high-profile interviews. Last week when CNN anchor Heidi Collins asked PETA campaign director Bruce Friedrich where his group was distributing its "Your Daddy Kills Animals" comics, he cited only "tackle shops" and "fishing piers" -- dodging well-deserved criticism for PETA's targeting children at their schools. And last night Friedrich told MSNBC's Tucker Carlson that PETA was justified in giving its grotesque materials to children because it "focus grouped" the material. Carlson's response? "Even in Washington, a focus group is not a moral justification." Carlson continued, speaking for parents everywhere: I'm offended by this. I can't believe actually that you put this out. This is an attack on fathers aimed at children. How could you do this? ... I assume you have no children, right? You couldn't. Nobody with children would put this out, because that's the kind of thing that gives kids nightmares.