LAW:

Fresh off Supreme Court win, legal group girds for more battles with EPA

SACRAMENTO, Calif. -- Alongside the replica London taxicab and a jar of candy on attorney Damien Schiff's desk, a blue trucker cap has a place of honor.

The cap -- advertising "Sackett Contracting & Excavating" -- was a gift from clients Mike and Chantell Sackett after Schiff successfully argued on their behalf in a recent Supreme Court case. The resulting decision, Sackett v. EPA, was a crushing loss for U.S. EPA in the 32-year-old lawyer's first appearance before the high court (Greenwire, March 31).

Since the March ruling, Schiff's star has risen. He's become a sought-after speaker at legal events. Potential clients are calling with their own tales of EPA-generated angst.

The unanimous Supreme Court ruling also served to burnish the reputation of Schiff's employer, the Pacific Legal Foundation, which is based here in a modest two-story office building just a few blocks from the state Capitol.

The conservative nonprofit legal group has been a thorn in EPA's side for almost the entire life of the agency.

In fact, PLF, as it's known, celebrates its 40th birthday next year, just three years after EPA reached the same landmark.

The Supreme Court win -- not the group's first -- has served to keep it in the public eye at a time when Republicans in Congress have been lambasting EPA for what they perceive as its overreach when it comes to regulation.

Sitting behind the desk in his comfortable office, Schiff conceded that PLF and EPA aren't on best terms.

"They certainly aren't inviting us to any cocktail parties," he said.

PLF's founding in 1973 had a lot to do with the man who occupied the governor's mansion down the street here: Ronald Reagan.

At a time when a conservative backlash against perceived liberal dominance in politics, policy and the law was just beginning, several aides to the Republican governor saw the need for a legal organization that could help lead the charge.

Ron Zumbrun, who worked on California welfare reform in the Reagan administration, became the first president of the fledgling group.

The current president, Robin Rivett, who joined two years later, said there was a sense at the time that liberal groups had a head start when it came to setting up public interest law firms.

"There were a number of folks who thought there was an imbalance," he said.

PLF was part of the first wave of conservative legal groups that emerged at that time. Others include the Mountain States Legal Foundation in Colorado and the Washington Legal Foundation in Washington, D.C.

The Federalist Society, a group aimed at fostering a new generation of conservative lawyers and judges, followed in 1982.

PLF quickly gained a reputation for focusing on property rights, often in the context of environmental regulation, according to Jefferson Decker, an assistant professor at Rutgers University who has studied the rise of the conservative legal movement.

With its focus mainly on the West then, the principal opponent was not U.S. EPA but rather the California Coastal Commission.

That struggle culminated in a major victory for PLF before the Supreme Court in 1987. In a case called Nollan v. California Coastal Commission, the court held the agency could not force property owners to provide a pathway to the beach as a condition for seeking a building permit.

As Decker noted, it's quite possible the property owners, James and Marilyn Nollan, would never have pursued the case if they hadn't had the pro bono legal assistance of PLF.

In that instance, PLF was already benefiting from its reputation as "the place to go if you had a gripe with the California Coastal Commission," Decker said.

A quarter-century later, it was the same reason why Mike and Chantell Sackett sought PLF's assistance, only this time in relation to EPA.

Wading into wetlands

The Sacketts, who own a small lot in Priest Lake, Idaho, came calling over another issue with which PLF has become synonymous: wetlands jurisdiction under the Clean Water Act.

That's largely due to the 2006 Supreme Court case Rapanos v. U.S., which concerned the efforts of Michigan landowner John Rapanos to develop a property that, much to his dismay, was designated a wetland. He hadn't applied for a permit and was subsequently the target of EPA civil and criminal enforcement actions.

PLF won that case, but it came at a cost: The court was so fractured that the whole issue of wetlands jurisdiction remains a mess (Greenwire, Feb. 7, 2011). It's one that Congress would need to resolve, but hasn't.

In 2007, the Sacketts had started building on their lot without a wetlands permit. When EPA paid a visit and issued a compliance order requiring them to stop work or face a daily fine, they decided they needed a lawyer. A local attorney referred them to PLF.

Once the case got to the Supreme Court, the issue wasn't quite what PLF would want to argue. Ideally, the group would like to tackle head on the extent of EPA's jurisdiction over wetlands. Instead, the court wrestled with the narrower issue of whether the Sacketts had a right to contest the issuance of the compliance order in court. The justices held that they did have such a right.

Schiff concedes that the question before the court was an easier one for him to win.

"The so-called liberal wing of the court is generally open to expanding judicial review," he said.

But he insisted that the case still fits PLF's mission.

"Our primary focus is that one has a fundamental right to use and enjoy one's own property subject to reasonable regulation to prevent injury to others," he said. "The Sacketts were certainly precluded from reasonable use of their property, but we couldn't even get a court to adjudicate on whether that restriction on the use of their property was legitimate or not."

Others might not agree with PLF on its wider aims, Schiff added, "but the Sackett case avoided that issue by saying, 'At least give us our day in court.'"

Schiff's -- and PLF's -- performance in the case won widespread praise.

"They did an excellent job and outlawyered the government," said Richard Frank, director of the California Environmental Law and Policy Center down the road from Sacramento at the University of California, Davis, School of Law.

PLF President Rivett was delighted with the work Schiff and his colleagues did on the case.

"Being there as a young attorney for the very first time, you are going to be extremely nervous," he said. "I know he was, but he didn't show it."

'Laserlike focus'

PLF, after years of court fights with EPA, has met with a grudging respect from both those within the agency and its lawyers at the Justice Department.

Adam Kushner, a former enforcement official at EPA, now a lawyer at Hogan Lovells, said the group has made effective use of the courts in order to advance its conservative goals.

"They have a serious agenda," he said. "They seem to have some ability to advance that in the courts."

Within government, its filings are given careful attention, Kushner added. PLF is "not like some of those other groups where you see a claim and you roll your eyes," he said.

UC Davis' Frank concedes that it sometimes "drives my environmentalist friends nuts" that he is so complimentary about PLF's effectiveness.

"They have hired some good lawyers. They have a laserlike focus on the issues. They have been very influential over the last 25 years," he said.

At one point, Frank, who for a long time served in the California Attorney General's Office, even unsuccessfully tried to hire one of PLF's attorneys.

Environmentalists are less keen on PLF.

Patti Goldman, an attorney at Earthjustice, has had contact with the group mostly via Endangered Species Act litigation. PLF is not a fan of the law, which it believes should take more account of individuals' property rights.

PLF has been behind "wholesale attacks" on the act that have been "universally unsuccessful," she said.

Goldman doesn't have much time for PLF's complaints about the statute, noting that the law has withstood court scrutiny in large part because it provides for public notice and comment.

Listings "can't be done without public participation," she said. "What they are seeking is special rights for certain interests."

Fundraising

Evironmentalists' complaints are unlikely to deter PLF, which has big plans.

Despite their relative success in the courts, PLF lawyers continue to rage against government power.

Rivett stakes out the position of a true believer, maintaining that not only has the overall picture not improved since PLF was founded, but it's gotten worse.

"I think government has done what government does," he said. "It grows and it can become more oppressive, and I think it has become more oppressive over the years."

Where PLF has been successful has been "in making governmental agencies think twice before they do certain things because they know they are going to be in our cross hairs," he added.

It's a theme Schiff picks up on in describing the group's relationship with EPA.

"I can't think they feel we threaten their existence. When we win, the change is going to be incremental," he said. "I don't think EPA necessarily quakes in its boots when it sees us, but at the same time I hope they would take us seriously."

The group has about 50 employees, including just more than 20 lawyers. In 2010, it raised slightly more than $14 million and spent just over $7 million, according to tax records for that year.

PLF says 49 percent of donations came from individuals, with 27 percent raised through foundations and 24 percent coming from businesses and what the group calls "other organizations."

Rivett said he plans to hire more attorneys and is considering opening an office in Washington so the group can be more responsive to media inquiries and invitations to testify at congressional hearings.

Schiff plans to continue with challenges to the Endangered Species Act, even though he admitted the group is running out of circuit courts where it can press its claims that the law is unconstitutional. Separately, PLF recently filed a petition asking that orcas -- more commonly known as killer whales -- in the Pacific Northwest be removed from the list of endangered species (E&ENews PM, Aug. 2).

PLF also plans to keep pressing its efforts to limit wetlands jurisdiction. That will take the form of a legal challenge to the latest administration guidance on the issue, which is yet to be finalized.

The group has been keen to engage on climate change, too.

PLF lawyers see climate rules in the same light as they do other any other government regulations that they believe stifle the economy. The group steers clear of what Schiff describes as "affirming or denying climate change."

PLF joined an industry- and state-led coalition that unsucessfully sought to invalidate the Obama administration's greenhouse gas regulations in litigation before the U.S. Court of Appeals for the District of Columbia Circuit (Greenwire, June 26).

It is one of the groups that has filed a petition seeking rehearing in the case.

Closer to home, PLF plans to challenge California's carbon cap-and-trade program, known as A.B. 32.

As for the question of the science behind climate change and how much of a threat it might be, Rivett insisted that when the group gets involved in climate litigation, it's looking only "at the way regulations are enacted ... especially if they have a significant effect on the economy."

Mankind may well have contributed to climate change, he added, but "the level of contribution, I don't know."

Sackett reprised

The success in Sackett looks as if it could open up a new front in PLF's battle against the government.

Many of the potential clients who have called seeking advice since the ruling complain of similar treatment, not just at the hands of EPA but also other agencies, including the Army Corps of Engineers.

Schiff hopes Sackett will help him challenge Army Corps decisions on wetlands jurisdiction. But first, he has a case in New Mexico involving property owners who had a "Sackett-like experience" with the corps.

PLF might also file briefs in cases that were already under way before the Supreme Court issued its ruling. One involves a chicken farm in West Virginia; another concerns Gasco Energy Inc. in Colorado. In both cases, EPA issued a compliance order and the companies involved were not able to challenge it in court first.

That both of those cases involve businesses challenging EPA action highlights the not-so-hidden secret about PLF: While it likes to see itself as a group that represents put-upon homeowners like the Sacketts, business interests also tend to benefit from the cases it wins.

The chairman of PLF's board of trustees is John Harris, the chairman and CEO of Harris Farms Inc., which describes itself on its website as "one of the nation's largest, vertically integrated family-owned agribusinesses." Other members of the board of trustees include several former or current executives of construction companies and various lawyers who represent companies in land use and real estate issues.

In Washington, legal experts thought it particularly notable that the Supreme Court took up Sackett instead of a petition filed by General Electric Co. that raised similar issues (Greenwire, July 11, 2011).

Paul Clement, a leading Supreme Court advocate at the Bancroft law firm, said at a U.S. Chamber of Commerce event in June that the "plight of the Sacketts ... is probably a little more sympathetic than the plight of GE."

Whether or not PLF acts as a stalking horse for the business community, it won't stop the group from embracing the more compelling narrative of sympathetic homeowners just trying to do what they want on their own land.

"It's the little guy," Rivett said in describing how Sackett fits in with PLF's mission. "A property owner who can't afford to represent himself when it comes to trying to protect his own interests against large governmental entities that have unlimited resources."

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