Tuesday, April 21, 2020

Grandchildren in Sandboxes, Elephants in Watering Holes

By Josh Blackman - April 21, 2020 at 08:00AM

Monday yielded several fascinating Supreme Court decisions. I encourage you to read the dueling opinions in Atlantic Richfield Co. v. Christian. Here, I will highlight two of Chief Justice Roberts's delightful gems.

First, he offers an assurance to the posterity of Montana:

Turning from text to consequences, the landowners warnthat our interpretation of §122(e)(6) creates a permanent easement on their land, forever requiring them "to get permission from EPA in Washington if they want to dig out part of their backyard to put in a sandbox for their grandchildren." Tr. of Oral Arg. 62. The grandchildren of Montana can rest easy: The Act does nothing of the sort.

Second, he puns on Justice Scalia's reference to elephants in mouseholes:

The landowners relatedly argue that the limitation in§122(e)(6) on remedial action by potentially responsible parties cannot carry the weight we assign to it because it is located in the Act's section on settlement negotiations. Congress, we are reminded, does not "hide elephants in mouse-holes." Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001).

We take no issue with characterizing §122(e)(6) as an elephant. It is, after all, one of the Act's crucial tools for ensuring an orderly cleanup of toxic waste. But §122 of the Act is, at the risk of the tired metaphor spinning out of control, less a mousehole and more a watering hole—exactly the sort of place we would expect to find this elephant.

Roberts is always a joy to read.

A few other points on Atlantic Richfield. Justice Gorusch issued a partial dissent. He raises some potential constitutional concerns with CERCLA.

Reading CERCLA this way would raise uneasy constitutional questions too. If CERCLA really did allow the federal government to order innocent landowners to house another party's pollutants involuntarily, it would invite weighty takings arguments under the Fifth Amendment. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 421 (1982). And if the statute really did grant the federal government the power to regulate virtually each shovelful of dirt homeowners may dig on their own properties, it would sorely test the reaches of Congress's power under the Commerce Clause. See National Federation of Independent Business v. Sebelius, 567 U. S. 519, 551–553 (2012).

The Gorsuch family has a lengthy history with CERCLA.

And, Justice Gorsuch offers this sharp barb back to the Chief;

The restrictions Atlantic Richfield proposes aren't really that draconian because homeowners would still be free to do things like build sandboxes for their grandchildren (provided, of course, they don't scoop out too much arsenic in the process).

Finally, Justice Gorusch earned his reputation as the Court's Westerner here. Throughout the opinion, there are references to the importance of property rights out west:

But, as in so many cases that come before this Court, the policy arguments here cut both ways. Maybe paternalistic central planning cannot tolerate parallel state law efforts to restore state lands. But maybe, too, good government and environmental protection would be better served if state law remedies proceeded alongside federal efforts. State and federal law enforcement usually work in just thisway, complementing rather than displacing one another.

Indeed, Gorsuch invoked western land in Thryv, Inc. v. Click-To-Call Technologies, LP, a patent case also decided on Monday.

Just try to imagine this Court treating other individual liberties or forms of private property this way. Major portions of this country were settled by homesteaders who moved west on the promise of land patents from the federal government. Much like an inventor seeking a patent for his invention, settlers seeking these governmental grants had to satisfy a number of conditions. But once a patent issued, the granted lands became the recipient's private property, a vested right that could be withdrawn only in a court of law. No one thinks we would allow a bureaucracy in Washington to "cancel" a citizen's right to his farm, and do so despite the government's admission that it acted in violation of the very statute that gave it this supposed authority. For most of this Nation's history it was thought an invention patent holder "holds a property in his invention by as good a title as the farmer holds his farm and flock." Hovey v. Henry, 12 F. Cas. 603, 604 (No. 6,742) (CC Mass. 1846) (Woodbury, J., for the court). Yet now inventors hold nothing for long without executive grace. An issued patent becomes nothing more than a transfer slip from one agency window to another.


from Reason Magazine Articles