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Monday
Jun272016

EPA Political Takeover: SLF Files Formal Public Comment against 'Environmental Justice' Action Agenda, June 27, 2016

WASHINGTON, DC/ATLANTA, GA, June 27, 2016:  Southeastern Legal Foundation (SLF) today filed a Formal Public Comment in the increasingly controversial expansion plans of the so-called “environmental justice” efforts by 17 federal agencies.  In the most recent version, the U.S Environmental Protection Agency (EPA) has proposed its “EJ 2020 Action Agenda,” which drew SLF legal analysis because the Agenda “is another attempt by the Executive Branch to bring about enormous and transformative expansion of its regulatory authority with Congressional authorization,” according to Kim Hermann, SLF Senior Counsel.   

The Action Agenda is by all accounts the most aggressive use of political authority to govern everything from the way new regulations are arbitrarily implemented, to public education and the spending of taxpayer dollars to support groups that attack regulated entities, to the twisted misuse of civil rights law to “help” some groups, while remaining silent on other Americans.  The end result is a system of governing that gives a select few the power to modify rules and punish perceived offenders without due process or equal protection under the law.

Read more about the shocking Agenda – and why SLF has engaged in the effort to stop the political takeover of the regulatory agencies.

Click here for SLF’s Formal Comment filed in EPA’s “Draft EJ 2020 Action Agenda,” June 27, 2016

Friday
Jun102016

WASHINGTON STATE THINKS IT CAN TAKE YOUR PROPERTY: Ignores precedent, appeal to U.S. Supreme Court, June 10, 2016

ATLANTA/WASHINGTON, DC (June 10, 2016):  The Constitution is the supreme law of the land - but did you know that whether the government can take your property now depends on what state you live in?

Today, Southeastern Legal Foundation (SLF), joined by the National Federation of Independent Business Small Business Legal Center, filed an amicus brief with the U.S. Supreme Court challenging the arbitrary use of government power to seize private land without just compensation. 

In Common Sense Alliance v. County of San Jose, a group of shoreline property owners challenged a city ordinance requiring them to give up part of their land to serve as water quality buffers.  The Washington court refused to apply the Supreme Court’s cases, instead opting for the improper test.

The Fifth Amendment to the United States Constitution requires just compensation when the government takes private property.  This is because a growing number of state and federal courts are allowing governments to demand property for public use without just compensation simply because they did so through legislation.

The U.S. Supreme Court has held many times that the government may only require a permit applicant to dedicate land to a public use when that dedication is necessary to mitigate a harm that the proposed project would cause.   In other words there must be an “essential nexus” between the demand and some harm the project would cause and the demand must be “roughly proportional” to the harm. 

For more than 20 years, a growing number of lower courts have refused to apply the Supreme Court’s cases when the demand is imposed by legislation rather than through administrative action.  In other words, if a city conditions a single permit on requiring that property owner to give the city an easement for a bike path, the lower court applies the essential nexus and rough proportionality test.  But, if the city imposes the requirement through a city-wide ordinance, that same lower court only requires the city to show that the ordinance advances some legitimate government objective.  This provides local and state governments with a roadmap for evading the Constitution - an unconstitutional trend that SLF has been fighting in court for 40 years in some of the most important precedent-setting cases.

Click here for SLF/NFIB Supreme Court amicus brief, June 10, 2016

Wednesday
Jun082016

Obama Politics Trump Rule of Law: "Environmental Justice," Complete with Political Commissars, June 7, 2016

ATLANTA/WASHINGTON, DC (June 7, 2016):  The shadowy "Office of Environmental Justice" born of Executive Order and unaccountable to Congress looms over federal regulators at the U.S. Environmental Protection Agency and 14 other federal regulatory agencies - mirroring the Soviet-style political commissars who oversaw political purity in the military and throughout Soviet life - and it's anathema to Constitutional checks and balances and separation of powers - see SLF's article in Daily Signal, June 7, 2016

Click here for Daily Signal article by SLF, June 7, 2016

Tuesday
May172016

U.S. Dept. of Interior Joins Obama Administration Push for "Environmental Justice", SLF Files Formal Comments, May 17, 2016

WASHINGTON, DC/ATLANTA, GA, May 17, 2016:  Southeastern Legal Foundation (SLF) today filed a formal public comment in the increasingly controversial expansion plans of the so-called “environmental justice” efforts by 15 federal agencies.  In the most recent version, the Department of Interior’s 2016-2020 Draft Environmental Justice Strategic Plan drew SLF legal analysis because the Plan is “outside the bounds of existing legal authority, and raises serious constitutional concerns,” according to Kim Hermann, SLF Senior Counsel.   

First, the DOI’s proposal allows it to take any action it sees fit under the guise of “environmental justice” without any requirement that it establish any actual effect, let alone any actual disproportionately high and adverse effect, on a particular population.  Second, by focusing on environmental “effects” on particular communities, the proposed plan contradicts federal law which requires that the agency focus on actual treatment of particular communities.  Further it makes the same conduct legal in one community, but illegal in another solely based on the racial makeup of those communities.  Third, the DOI’s proposed use of social outreach tools raises serious concerns about anti-lobbying violations.  And finally, because the proposed plan protects some racial and ethnic groups and not others, it runs afoul of the Equal Protection Clause.

Click here for SLF's Formal Comment filed in Dept. of Interior "Environmental Justice" Plan, May 17, 2016

Monday
Apr182016

Government Says Owners Can't Use Property: SLF Files Supreme Court Brief, April 18, 2016

WASHINGTON, DC/ATLANTA, GA, April 18, 2016:  Can't sell or use your property?  Let's see what the Supreme Court has to say about it . . . SLF, joined by The Beacon Center, files amicus brief in the U.S. Supreme Court in support of the constitutional property rights.

The Murr family purchased a lakefront residential lot in 1960 and built a recreational cabin on it.  Several years later they purchased the lot next door as an investment.  The Murr children now want to sell the investment lot and use the money to renovate the cabin, so that future generations of Murrs can enjoy summers at the lake.   Happens a thousand times a day across the America, right?

Unfortunately, a 1975 county ordinance stands in their way.  After seeking and being denied a variance, the Murrs filed suit in federal court seeking compensation for the taking of their land.  The Wisconsin courts declined to find a taking simply because the Murrs lots were contiguous and shared the same owner.  In other words, if one lot was owned by 2 of the Murr children and the other lot was owned by the other 2 Murr children, it would have found a taking.  Or if the lots were not directly next door to one another, it would have found a taking.

SLF and The Beacon Center, argues that the lower court’s aggregation of two contiguous lots that have otherwise been treated separately is neither fair nor just because it deprives the property owners of all economically viable use of one of those lots.  In its brief, they advocate for the Supreme Court to devise a test for evaluating future attempts to aggregate property such as the multi-factor test applied by several lower courts.  Such a test supports the Murrs’ argument that Takings Clause jurisprudence supports a presumption that where a single parcel is alleged to have been taken, the parcel as a whole is that single parcel, nothing more and nothing less.

Click here for Supreme Court brief, April 18, 2016

Wednesday
Apr132016

EPA's Public Records Stonewalling Slammed by Federal Court, April 13, 2016

EPA’s PUBLIC RECORD STONEWALLING SLAMMED BY FEDERAL COURT

ATLANTA, GA/April 13, 2016:   Southeastern Legal Foundation won its seven-year battle for records related to greenhouse gases and the EPA’s annual Freedom of Information Act (FOIA) reports.  Over the course of six years, SLF submitted three FOIA requests to the EPA: 1) seeking records related to the timing, public comments and financial implications of the Endangerment Findings; 2) seeking records related to grants related to anthropogenic climate change issued or denied by the EPA; and 3) the raw statistical data underlying the EPA’s Annual FOIA Reports for specified years.  In 2015, after the EPA continuously stonewalled SLF’s efforts to access the public records, SLF went to federal district court to challenge the EPA’s failure to meet its obligations under the Freedom of Information Act.

In late March, the U.S. District Court for the Northern District of Georgia granted two of SLF’s three motions for summary judgment and ordered the EPA to produce records responsive to SLF’s FOIA requests at no cost to SLF.  With respect to the third motion for summary judgment, after receiving a log of the EPA’s redactions, SLF determined that it no longer needed the redacted information and voluntarily abandoned those claims.

In granting SLF’s requests for fee waivers, the district court slammed the EPA for denying SLF’s fee waiver request in the first place, stating that “it is not difficult to discern a basis for SLF’s assertion of a substantial public interest in the information” and explaining that “it is difficult to imagine a more hot-button topic than the public’s interest in and heated reaction for or against the government’s efforts to regulate greenhouse gas emissions.”

The district court balked at the EPA’s argument that it did not need to produce any records about its controversial “Endangerment Findings,” which served as the justification for the rules which were ultimately struck down by the U.S. Supreme Court.   In doing so, the court stated that the promulgation of an administrative rule “does not obviate the informative value” of related information, setting important precedent for the Northern District of Georgia.  The district court also slammed the EPA for its refusal to make any attempt at obtaining agency records allegedly held by an agency contractor and ordered it to take all reasonable steps to obtain the requested records.

SLF's win is important for reasons that far exceed the knowledge to be gained from the responsive records EPA must now produce.  It creates strong legal precedent for the grant of SLF's fee waiver requests which SLF can rely on in future FOIA requests and related litigation.  

But even more important is the message it sends to the EPA - while it may be able to play its games and delay or deny production of records in other jurisdictions, the Northern District of Georgia will not stand by and allow the agency to refuse to produce responsive records or deny fee waivers when there is a clear and obvious public interest.   SLF will be able to rely on the Court's order and lessons learned from its successful litigation in future FOIA requests to the EPA and other federal agencies – a clear win for accountable government advocates.

Click here for U.S. District Court Ruling

Wednesday
Mar162016

Obama Lawyers to Silence Climate Change Skeptics, Washington Times, March 16, 2016

March 16, 2016:  In today's Washington Times, SLF warns of the First Amendment constitutional crisis that would be created by threats from the Obama Justice Department to bring court action against man-made climate change skeptics - exactly the kind of tyranny the Founders feared and the Constitution protected against -

Click here for SLF's op-ed in The Washington Times, March 16, 2016

Wednesday
Feb242016

Obama's "Clean Power Plan" Unconstitutional - SLF and top litigator file amicus brief, Feb. 22, 2016

WASHINGTON, DC (Feb. 22, 2016): Southeastern Legal Foundation and nationally recognized attorney Steven Bradbury, a partner at Dechert LLP in Washington, DC, today filed a critical amicus in the U.S. Court of Appeals for the District of Columbia joining in the challenge against the Environmental Protection Agency’s so-called “Clean Power Plan.” State of West Virginia, et al. v. EPA, et al., No. 15-1363. The Plan was stayed by the Supreme Court in early February.

As argued in the brief, the Clean Power Plan violates critical framework provisions of the U.S. Constitution – the separation of powers between the legislative and executive branches, and the federalism principles that protect the states from federal overreach. In this case, the Clean Power Plan mandates that states issue regulations in compliance with the announced federal standards, a power that the federal government does not have.

Following on the heels of the 2014 Supreme Court decision striking down the Administration’s so-called “climate change” rules purported to regulate greenhouse gas emissions, SLF, et al. v. EPA, et al. (2014), Bradbury and SLF Senior Counsel Kim Hermann argue that the Clean Power Plan leapfrogs over the 2014 decision and further embarks the Administration on a journey of constitutional executive overreach.

Highlights from the brief:

“The Clean Power Plan must be struck down unless Congress has granted the EPA clear and unambiguous authorization to embark upon this extraordinary and transformational regulatory program. Far from providing such express authorization, the provisions of the Clean Air Act squarely foreclose the regulatory overreach announced by the EPA. The rule should therefore be invalidated.”

“In doing so, the EPA’s regulatory regime would upend the constitutional balance of powers by arrogating to an executive agency the authority reserved to Congress to craft wholly new legislative solutions, as well as the awesome power to compel the States to enforce the agency’s unprecedented commands. This industry-transforming regulation cannot be sustained in the absence of a clear and unambiguous statutory authorization from Congress, which is nowhere to be found in the Clean Air Act.”

Bradbury, who was co-counsel with SLF in the 2014 Supreme Court case on greenhouse gas emissions, served as the head of the Office of Legal Counsel in the U.S. Justice Department, and was a law clerk for Supreme Court Justice Clarence Thomas.

Click here for SLF amicus brief in Clean Power Plan challenge, West Virginia, et al. v. EPA, et al., No. 15-1363, Feb. 22, 2016

Monday
Feb222016

U.S. Soldier's Child Born on U.S. Base is a Citizen - Appeal to U.S. Supreme Court, Feb. 17, 2016

ATLANTA, GA/WASHINGTON, DC (Feb. 17, 2016):  A child born to a U.S. soldier who is serving overseas and the child is born on a U.S. base in a U.S. hospital is not a U.S. citizen, according to the Fifth Circuit federal appellate court.  Southeastern Legal Foundation has filed an amicus brief challenging this holding, asserting that "This Court should hold, simply, that the child of a U.S. citizen soldier, born in a U.S. hospital on a U.S. base, is a U.S. citizen."  Thomas v. Lynch, No. 15-889.

SLF Senior Counsel Kim Hermann, who co-wrote the brief with John Adams, Matthew Fitzgerald, and Michael Baudinet of McGuire Woods LLC in Richmond, VA, argue that with a basic Originalist view of the Constitution's Citizenship Clause, acknowledging the Constitutional citizenship of children of military families overseas is consistent with our nation's tradition of encouraging and honoring military service.

Click here for SLF Supreme Court brief in Thomas v. Lynch, No. 15-889, Feb. 17, 2016

Wednesday
Feb102016

Obama's so-called "Clean Power Plan" halted by Supreme Court, Feb. 10, 2016

WASHINGTON, DC:  The U.S. Supreme Court today dealt a significant initial blow against President Obama's so-called "Clean Power Plan" by staying the Plan's implementation until oral arguments before the high court on June 2 this year.

Since the Court's 2014 decision slapping down the Environmental Protection Agency's greenhouse gas regulations as "executive overreach" and a violation of constitutional separation of powers, in which SLF represented 14 members of Congress and multiple professional associations and companies, "the tendency has been for the federal courts to halt President Obama's regulations in order to figure out whether Congress has had a chance to review and approve them," said Todd Young, SLF chief operating officer.  "In this case, as in most recent cases, Congress was left out of the constitutional equation and the Executive branch simply gave itself authority to change the law."

SLF will be participating as a friend of the court in the Clean Power Plan arguments before the Supreme Court.  SLF is also currently challenging the EPA's controversial "Waters of the United States" regulations that have likewise been stayed by the Sixth Circuit federal appellate court.