Jay Austin

  • February 21, 2018
    Guest Post

    by Jay Austin, Senior Attorney and Editor-in Chief of the Environmental Law Reporter, Environmental Law Institute

    For the past year or so, a steady refrain in environmental and regulatory law has been “can he do that?” – the ongoing reexamination of presidential and executive branch authority against a dizzying backdrop of reversals, revisions, and rescissions of Obama Administration policies and rules. My own attempts to answer this question included a look at last April’s Executive Order 13795 on “Implementing an America-First Offshore Energy Strategy,” which attempts to extend the new watchword of “energy dominance” to the outer continental shelf.

  • September 24, 2015
    Guest Post

    by Bruce Myers & Jay Austin, Senior Attorneys, Environmental Law Institute

    To date, a wolf, a toad, two fish, a fly, and a collection of “cave bugs” have successfully carried the banner of the Endangered Species Act (ESA) against a series of constitutional challenges. On Monday, the Tenth Circuit will hear oral arguments in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service—yes, you read that name correctly—on whether the Act is unconstitutional as applied to the endangered Utah prairie dog. PETPO has implications for nearly every federal environmental law, and for other laws enacted on the basis of Congress’ authority to pass legislation that is necessary and proper for regulating interstate commerce.

    As Professor David Driesen documented in earlier posts (here and here), PETPO asks whether the Fish & Wildlife Service can protect this prairie dog if it neither crosses state lines nor has obvious economic value. A federal district judge in Utah thought not, triggering this appeal. Now, the court must decide whether this unassuming rodent stands entirely outside Congress’ constitutional authority to regulate activities that, in the aggregate, “substantially affect” interstate commerce (as the Supreme Court characterized this aspect of the commerce power in its 2005 medical marijuana ruling, Gonzales v. Raich).

    This is not property-rights advocates’ first whack at the ESA, nor the first time a federal court has considered the constitutionality of protecting intrastate or highly localized species under it. From 1997 to 2011, six appellate cases spanning five circuits rejected similar challenges. These rulings feature a rogues’ gallery of species that are mostly uncharismatic and lack evident commercial value: the Delhi Sands Flower-Loving Fly, California delta smelt, arroyo southwestern toad, Alabama sturgeon, red wolf, and various subterranean cave-dwelling invertebrates.

  • May 12, 2010
    Guest Post

    By Jay Austin & Bruce Myers, Senior Attorneys, Environmental Law Institute

    Big business versus the little guy. The Ninth Circuit running amok. The specter of "frankencrops." All of these tropes -- some familiar to Supreme Court-watchers, one more novel -- were potentially in play last month when the Court considered Monsanto v. Geertson Seed Farms, its first case dealing with federal regulation of genetically modified organisms (GMOs). Yet the oral argument found the justices preoccupied with fine points of jurisdiction, administrative law, and equity, suggesting that their actual ruling may turn out to be a narrow one.

    Geertson arose from a Bush Administration decision to deregulate "Roundup Ready" alfalfa, Monsanto's proprietary strain that has been engineered to resist Monsanto pesticides. Mr. Geertson and other conventional farmers sued the Animal and Plant Health Inspection Service under the National Environmental Policy Act (NEPA), claiming the agency failed to produce an environmental impact statement (EIS) that fully considers the risk of cross-pollination between GMO crops and conventional crops. If such contamination occurs, the plaintiffs' GMO-free status -- and thus their entire business model -- could be in jeopardy.

  • November 24, 2009
    Guest Post

    By Jay Austin, Senior Attorney, Environmental Law Institute; Director, Endangered Environmental Laws Program

    This fall's Supreme Court calendar features only one environmental law case - a bit of a relief compared with last term, when the Court heard five environmental appeals and the "green" side lost all five. Yet that case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, is a sleeper with the potential to reshape both the Court's Fifth Amendment takings jurisprudence and its traditional deference to state courts' interpretation of state common law.

    What's wrong with "beach renourishment," the innocuous-sounding practice of replenishing sand along storm-eroded coastline, as authorized by Florida statute and carried out at great public expense? According to petitioners, it deprived their property of its "oceanfront" character, by widening the public side of the beach and replacing the traditional dynamic boundary that tracked the mean high water mark with a new, fixed line. They sued in state court - first to enjoin the renourishment program, then for monetary compensation, claiming a taking of their property rights.

    The Florida Supreme Court disagreed. In a lengthy opinion that cites Florida case law and authorities dating back to Blackstone, it held that "under Florida common law, there is no independent right of contact with the water"; and that the statute adequately preserves the owners' other rights, including their right of access to the beach and the water. Absent an identifiable lost property right, there could be no taking and no compensation owed. Two Florida justices dissented, and petitioners appealed to the U.S. Supreme Court.