Thursday, July 25, 2013

ADMINISTRATIVE AGENCIES, PART 1--THE REGULATED STATE

Administrative agencies, and their dictates, permeate all aspects of our lives in the United States today. In reality, their regulations govern our activities more extensively than statutes and court decisions, including the water we drink, the waste we create, the air we breathe, the food we eat, the medications we take, the houses we live in, the cars we drive, the energy we use, etc.

Looking at one small area--drinking water, for example--consider how broad federal and state EPA and similar agency regulatory jurisdiction is. These agencies regulate and allocate sources of water, composition of water, treatment of water, distribution of water and usage of water, and their rules affect the availability and cost of water service.

These agencies exist at all levels of government. They not only promulgate regulations, but they also enforce them by granting or withholding permits, by filing and adjudication claims for violation of regulations in trial-type hearings, and by assessing fines and other penalties for violations. Some have asserted that agencies can be both prosecutor and judge at the same time.

Administrative agency rules and rulings tend to reflect the policies and politics of the executive branch of government, such as the president or governor who appoints agency commissioners. A current example can be found in the President's June 25, 2013 speech on his plans to control alleged climate change by changing the way the United States produces and uses electric energy. His plans include issuance of regulations to curb emissions from coal-fired power plants, which could result in a substantial reduction in such generation in favor of other types such as natural gas. According to the President, his plan did not need Congressional approval. Apparently, the President intends to put his policy into effect by directing USEPA to do so. He said he would direct USEPA to "put an end to the bottomless dumpling of carbon pollution from power plants." (Wall Street Journal, June 26, 2013, p. A2)

So what branch of government are administrative agencies? They seem to have some attributes of the executive, the legislative and the judicial branches but they do not belong to any of them. Are they a fourth branch of government? Are they accountable to anyone?

In the next three postings, I will explore the basis for administrative agencies, how they have changed the United States, and how the regulators can be regulated.

Wednesday, July 17, 2013

GOVERNMENT MUST GIVE IN ORDER TO TAKE

The Fifth Amendment to the U.S. Constitution states, in part, "nor shall private property be taken for public use without just compensation."

In June, the U.S. Supreme COurt issued a decision that has received little media attention but has importance for land use and environmental regulation.*

An owner of some Florida land sought a permit from a local water management district to develop a portion of the owner's land. State law requires permit applicants seeking to build on wetlands to offset any resulting environmental damage. The developer proposed to mitigate the effects of his project by giving the district a conservation easement over the rest of his land. The district rejected the developer's offer and said it would grant a permit only if he substantially reduced the size of his project and granted a conservation easement over the much larger balance of his land or if he paid for improvements to wetlands owned by the district elsewhere.

The landowner rejected the district's demands, and the district denied the permit. The landowner sued in state court for damages on the ground that the district's action was a taking of property without just compensation. The Florida Supreme Court denied the claim.

The U.S. SUpreme Court reversed the Florida decision. The Court applied the "unconstitutional conditions doctrine", as expressed in its prior Nollan** and Dolan*** decisions. Those cases establish that government may not condition the grant of a land use permit on the landowner's giving up a portion of the owner's property unless there is a nexus and rough proportionality between the condition demanded and the effects of the proposed land use.

At issue in the current case was whether the unconstitutional conditions doctrine applied when the requested permit was denied. The Court held that it does apply. The Court stated that the Nollan and Dolan decisions "provide important protection against the misuse of the power of land-use regulation."

Writing for the majority, Justice Alito said: "We have said in a variety of contexts that 'the government may not deny a benefit to a person because he exercises a constitutional right.'". He added that the unconstitutional conditions doctrine "protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits." The Court further stated that under the doctrine, "the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed developments, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts. The Court also held that the doctrine applied regardless whether a permit is granted with conditions or is denied because the applicant rejects the conditions.

While this case involved wetlands mitigation, the key factual issues of "nexus" and "rough proportionality" could become relevant in other development permitting scenarios, such as government demand for contributions of money, road improvements, water and waste water facilities, and the like.

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* Koontz v. St. Johns River Water Management Dist., 570 U,S,___(2013)

** Nollan v. California Coastal Comm'n, 483 U.S. 825 (1087)

*** Dolan v. City of Tigard, 512 U.S. 374 (1994)

Thursday, July 4, 2013

THEY DON'T HUNT FOR MOTHS ANYMORE

A couple of months ago, I wrote about a pond which was a focus of some youth reflections. ("THE POND", April 8). The pond was an ecosystem that seemed to both host an extensive natural community and provide environmental water collection benefits for the surrounding prairie and farmland. I mentioned that stands of trees and shrubs at the pond provided hunting grounds for cecropia moth cocoons. Indeed, the pond was a magnet for all sorts of insects, including wild bees that have disappeared today.

Cecropia are the largest American moth, and are a giant silk moth. They are extremely colorful and have a wingspan of 5 to 6 inches. The moth cannot eat, as it has no mouth or digestive system. The moth, therefore, lives only a week or so, long enough to mate or lay eggs for the next generation. In the Fall, a mature cecropia caterpillar spins a silken cocoon around it attached to a tree or shrub branch and becomes a pupa until it emerges as a moth in the Spring.

For me and my friends, a cecropia cocoon was the grand prize of hunting. But we found few. Most of the cocoons we found produced a similar giant silk moth called polyphemus. Less colorful than cecropia, they live only a week or less, as they also do not eat. The cocoons of both moths look alike to young eyes, so what kind of cocoon one found had to wait until a moth emerged.

Therein lies a story. The best hunting for cocoons was done in late Winter or early Spring, when cocoons could be seen without leaves or snow to interfere. The procedure was to snap off a branch bearing a cocoon and carry it home proudly as a trophy. Because of its value to me, I would find a place for my cocoon somewhere in our living room--without the knowledge of the other occupants. When the moment was right, as they say in the TV commercial, the warmth of the room and sun pouring through the window would stimulate emergence: the pupa would open and a moth would tear through the top of the cocoon. To my mother's horror, the moth would crawl along the carpet and up a drape, where its wet, crumpled wings would stretch and dry to become a BIG moth. Amid requisite screams, the moth then would fly around the room and come to rest on another drape or a lamp shade to await evening. In the evening, I would always release it to frolic for its week of life.

Most of time, our cocoons would give us polyphemus moths. But when a kid found he had a cecropia, he had endless bragging rights. Regardless, we learned a great deal from the life cycle of these moths..from egg to adult moth. Most important, we learned to respect the lives of these creatures of the night that few people ever have have seen. And, perhaps without the ecosystem of the pond, we may never have seen them.

Today, kids appear to collect electric cocoons called smart phones, tablets, computers, games, etc. and look for electronic pictures and words to hatch from them. Back at the pond, we had cecropia, polyphemus and more, and the learning they gave us--without batteries needed.