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School children across Utah were likely exposed this week to the virtues of environmental conservation and the heroics of “Captain Planet” in honor of Earth Day. We presume that few were introduced to the unintended consequences of federal environmental regulation. Forty three years ago, the Clean Water Act was enacted—the original intent of which was to authorize the EPA to ensure waters of the United States were not being polluted. This law has been used in modern times to prevent private property owners from developing their own property without first obtaining expensive permits from the federal government.
Later this month the EPA may be finalizing a proposed rule to define the “waters of the United States” over which it has regulatory jurisdiction under the Clean Water Act. The EPA has been unsatisfied with the way in which ambiguity about the definition has led to recent court decisions that seem to confine EPA authority to interstate or “navigable” waters and only those additional waters that have a “significant nexus” to navigable waters. Conversely, the regulatory trend of EPA enforcement has led to the expansion of their jurisdiction to intrastate waters including adjacent wetlands, intermittent tributaries that may only flow during wet seasons, and even remote bodies of water at times. Historically, the EPA’s attempt at enforcement over such waterways has led to Supreme Court litigation resulting in precedent that has narrowed this scope. Dissatisfied with this result, the EPA now seeks to permanently define their regulatory overreach in a more expansive way while also precluding future legal battles over jurisdiction.
The way “waters of the United States” is defined in statute will have significant and far-reaching effects for private property owners, agriculture, and industries throughout the country. By expanding the scope of this term, the EPA will gain jurisdiction over millions of acres and countless private activities. Representative Harold Rogers (R-Ky), Chairman of the House Appropriations Committee, called the proposed rule “the biggest land grab in the history of the world,” expressing concerns that it would have a profoundly negative economic impact. Farmers across the country are so concerned about the impact of the rule that the Farm Bureau launched a public awareness campaign to “ditch the rule”—referencing their assessment that application of this expanded definition could extend regulatory control even to irrigation ditches on farm property.
EPA claims its purpose is to bring certainty and clarity to the definition after recent supreme court decisions. However, the only thing that will become clear and certain is that EPA authority will be broadened well beyond the 10th Amendment limits of federal power. This comes as no surprise to those who are familiar with other recent EPA rule making efforts where the agency has sought to expand its jurisdiction over air by categorizing carbon dioxide as a pollutant.
This expansion of the regulatory state threatens property rights. Beyond just increased burdens on development and industry, this consistent expansion of federal authority turns the fundamental concept of property rights on its head. If a property owner must constantly ask permission from the government for the use of their property, the reality is that those property rights do not really exist at all. The level of regulation over property in our country today hearkens back to feudal English times when individuals had no absolute property rights, but only those temporary grants subject to the will of the sovereign king. Our country was to be one in which the people were sovereign and rights were absolute. It was a conscious rejection of the old system and an innovation that facilitated much of our economic success to date.
We call on Utah to follow the example of states around the country who have proposed laws to reject this expansion of federal authority and nullify unconstitutional EPA actions and rule making.
Here is a short list of recent examples to which Utah can look:
- Indiana—HB1290 (2015): Broad EPA Nullification
Nullifies all regulations imposed in Indiana by the EPA. Provides that the department of environmental management shall provide environmental protection for the citizens of Indiana. “The regulation making authority of the United States Environmental Protection Agency is not authorized by the Constitution of the United States in any article or amendment and violates the Constitution’s true meaning and intent as given by the founders and ratifiers.”
- West Virginia—HB2593 (2015): Nullification of EPA waters of the US rule
The “Private Property Protection Act” declares that the EPA lacks the authority to enforce the rule and expressly asserts state authority and jurisdiction over such intrastate waters and places the duty on the state to adopt all measures necessary to prevent the rule’s effect on property rights of the citizens of WV. Makes it a felony for any state officer to act to enforce the rule in WV and directs the AG to represent any citizen charged with violation of the rule.
- Arizona—SCR1015 (2015): Nullification of EPA waters of the US rule
Proposes an amendment to the state constitution to assert state authority over non-navigable intrastate waters and to prohibit state officers or state resources to be used in enforcing federal actions over non-navigable intrastate waters related to the proposed rule. Builds on the idea of the previously successful Proposition 122. Bill passed Senate subcommittee.
- Arizona—HB2055 (2015): Resistance to the EPA waters of the US rule
Requires Governor approval and notification of Speaker and Senate President prior to the use of any state resources for the cooperation with EPA in the enforcement of the new waters of the US rule (Utah had similar language in statute prohibiting cooperation for compliance with REAL ID).
- Arizona—SR1003 (2014): Broad EPA Nullification
Senate resolution supporting the nullification in Arizona of all rules imposed by the EPA.
- Oklahoma—SB1167 (2014): Broad EPA Nullification
Declares the rule making authority of the EPA unconstitutional and invalid in the State of Oklahoma. Directs the Legislature to adopt any and all measures necessary to prevent the enforcement of rules issued by the EPA which are not specifically authorized by Congress.
- Idaho—HB473 (2014): Broad EPA Nullification
Declares EPA authority in Idaho null and void and directs the state to take any and all measures necessary to prevent enforcement of EPA regulations.
- Virginia—HB1357 (2010 & 2011): Nullification of EPA greenhouse gas rule
Prohibits the Air Pollution Control Board and the Department of Environmental Quality from taking any action to restrict the emission of carbon dioxide. Any federal law or regulation that purports to prohibit, limit, or control in any way the emission of carbon dioxide shall be without authority, void, and of no force within the boundaries of the Commonwealth.
Around the country, states have imposed licensure requirements on a large number of professions, effectively requiring workers to seek government permission—and pass through a number of bureaucratic hurdles—in order to practice their chosen profession. Whereas in the 1950s only one in 20 U.S. workers were required to obtain a license, that figure today stands at almost one in every three workers.
For each licensed profession, state legislatures usually authorize and empower a governing board, comprised in most cases of members of that same profession. For example, in Utah, the licensure of chiropractors is regulated by a board made up of four chiropractors and a token “public member” who is not a member of the industry. Nurses are regulated by a board comprised of nine fellow nurses and two public members. Direct-entry midwives are overseen by four licensed people from the profession and one “public member.” The trend holds constant for the other several dozen licensed professions in Utah.
That trend may soon change in light of a U.S. Supreme Court opinion issued in February that may put these boards on the defense. The case at hand, North Carolina State Board of Dental Examiners v. FTC, arose due to the dental board—comprised primarily of dentists—engaging in non-competitive behavior and being sued by the Federal Trade Commission. Specifically, the board attempted to prohibit non-dentists from providing teeth whitening services, presumably because this competition undermined their monopolistic hold on the market.
Editor’s note: The following is a lightly edited interview with Paul Cassell, a former federal judge in Utah who now teaches law at the University of Utah. This interview discusses one of his rulings, imposing a 55-year prison sentence on a low-level drug dealer. Cassell’s ruling notes that mandatory minimum sentencing laws required him to impose the sentence—one which he stated, in his ruling, to be “unjust, cruel, and even irrational.”
The comments in this interview do not necessarily reflect the views of Libertas Institute.
Libertas Institute: One of the cases you adjudicated that has received the most attention is that of Weldon Angelos. Can you summarize who he is, and what the case was about?
Paul Cassell: The details are set out in the court opinion, so obviously this is just a summary not intended to be an exhaustive account. In essence, Weldon Angelos was involved with three marijuana deals [in 2002], and for each of those deals he brought along a firearm with him. Under federal law, if you have a firearm that is in furtherance of a drug deal—and simply bringing a firearm would be in a furtherance of a drug deal—then the first offense is a five year mandatory minimum, the second offense is 25 years, and the third offense is another 25 years.
So in the course of, as I recall, a week or 10 days, Angelos racked up about 55 years of mandatory federal prison time.
LI: Is Angelos’s case, in your judicial experience, an anomaly—or did you see other cases like it?
PC: I was on the bench for about 5.5 years in Utah, and that was certainly the most extreme mandatory minimum sentence I saw while I was there. I can’t point to other cases I had that were like that, but I know there a number of other cases around the country. These are called 924(c) counts. There are other people who have been subjected to those kinds of penalties.
We have written previously about Utah’s voluminous laws and are pleased to report that after this session, the number of criminal offenses has been reduced significantly due to the comprehensive criminal justice reform effort. House Bill 348, the Justice Reinvestment Initiative, garnered a lot of attention for its reduction in criminal offense levels for certain low-level drug offenses—but it also had a significant impact on certain misdemeanor traffic offenses. The bill reclassified 259 offenses from a class C misdemeanor to an infraction, 34 class B offenses to a class C, and made a handful of other reductions.
Many places in Utah code previously set the default criminal classification as a class C misdemeanor, which comes with a possible jail sentence of up to 90 days. These reclassifications represent significant progress in reducing the impact of over-criminalization on Utahns and the taxes they pay. The purpose of the reforms was to refocus criminal justice resources on those crimes that have the largest impact on public safety. For example, instead of sending someone to jail for “driving over a firehose,” the state will now treat this as an infraction with fines instead of expensive and burdensome jail time.
John Oliver, host of HBO’s “Last Week Tonight,” recently did a segment on over-criminalization in America and the impact of municipal and other small violations on people’s lives. At one point he quipped that the state has to “spend money to make money to be able to afford to jail people to lose money.” This describes quite accurately the fiscal shortcomings to a criminal justice approach where expensive enforcement resources are devoted to collecting fines on small offenses that can land offenders in expensive jails for unpaid fines related to minor offenses. Such an approach turns our “public safety” apparatus into nothing more than a veiled return to the debtor prisons of the past—but at significant taxpayer expense.
Over-criminalization also has the effect of undermining the morality of law as it expands state sanctions against morally wrong behavior to mere violations of the regulatory state. George Will wrote that this “corrodes the rule of law” in his column this week where he argued that the administrative state threatens liberty.
We applaud the legislature for passing these sweeping reforms and hope that they will sustain this commitment to reducing over -criminalization in Utah.
We have written previously regarding the recently successful legislative effort to reform Utah’s criminal justice system in Utah. While several aspects received more attention than others—including lowering certain drug possession penalties from a felony to a misdemeanor, and shifting offenders from punishment to treatment—one crucial aspect has not received as much attention as it should: the reduction of penalty enhancement “buffer zones.”
Previous to this change, which passed the legislature almost unanimously, Utah law created a number of zones in which a person alleged to be in violation controlled substance laws would have their penalty automatically increased by one degree—for example, raising the charge from a class A misdemeanor to a third degree felony.
The worst part of the law, as previously constituted, was its broad geographical coverage, sometimes including nearly an entire city. If a person in violation of Utah’s drug laws committed the offending act in the following locations, it triggered the penalty increase:
Libertas Institute has several summer research internships available for college students or recent graduates. Join our successful organization to help advance the cause of liberty in Utah!
We are in need of policy research assistance to prepare some of the legislative proposals Libertas will be advancing in the 2016 general session beginning in January. See here for an example of recent policies we worked on.
- Research assigned policies spanning a broad spectrum of subjects
- Compile, sort, and analyze data
- Prepare reports and summarize data
- Write articles on assigned topics
- Must be interested in and aware of the political process
- Understanding of, and passion for, liberty
- High attention to detail
- Excellent research and writing skills
- Social media experience
These are unpaid positions, though we will gladly work with your school to provide credit if that is an option. Any necessary expenditures related to assigned work will be reimbursed.
Interns will work in Lehi on a part-time basis, either a morning or afternoon shift.
Interested students should submit a resumé and two writing samples to firstname.lastname@example.org with “Research internship application” in the subject line.
Jeremy Trentelman is a resident of Ogden who recently built a cardboard fort for his three-year-old daughter. While his young daughter received a lesson in fatherly love and support, she is also now learning a lesson about the raw and invasive power of the state.
Mr. Trentelman has been admonished by a code enforcement officer for being in violation of city ordinance, which reads: “It is unlawful for any owner, occupant, agent or lessee of real property within the city, to allow, cause or permit the following material or objects to be in or upon any yard, garden, lawn, or outdoor premises of such property: 1. Junk or salvage material; 2. Litter; 3. Any abandoned vehicle or inoperable vehicle.”
In an interview with the Standard Examiner, he defended his front lawn feature: “It’s obvious it’s not junk. There is a slide over the side and child graffiti all over the boxes. It looks like a fort.”
President Obama visited Utah, arriving last night and departing this morning. He was ferried in a plane that costs taxpayers $179,750 per hour to operate. To provide security, he was accompanied by Secret Service agents. Local police barricaded roadways and helped secure the area, obstructing the natural flow of traffic and disrupting local economic activity in the process. All of these corollary consequences of Obama’s travel come with a significant cost.
Last night, the president met with local elected officials, leaders of the LDS Church, and others. This morning, he gave a seven-minute speech in front of an array of solar panels, touting the importance of this emergent industry. In his brief address, he focused on renewable energy and announced a goal to train 75,000 workers for solar energy jobs, focusing on veterans who are transitioning back into civilian life. He mentioned that “we” must be “relentless” in adding new jobs, claiming that some 129,000 were added to the economy in March.
Many expect the Governor to call a special session this year to re-consider a proposal for Medicaid expansion under the Affordable Care Act. We caution the Governor and Legislature against Medicaid expansion. Providing health insurance is not the responsibility of the government and such redistributive policies violate the property rights of everyone as it requires either raising taxes or incurring debt to finance such expenditures.
During the legislative session earlier this year we issued a warning in our public comment on the Governor’s “Healthy Utah” Medicaid expansion plan. Our view was that expanding Medicaid on the promise of generous federal matching funds was unwise because such promises were unlikely to be kept. We were proven right last week when Congressman Tom Price, Chairman of the House Budget Committee, unveiled the House budget plan which aims to balance federal spending in nine years. A key element of the budget plan is repealing Medicaid expansion under the Affordable Care Act, thereby eliminating these generous federal match rates altogether.
Representative Price replaced Paul Ryan as committee chairman this year and has advocated for cutting the federal match rate for Medicaid expansion in order to balance the budget since at least 2013. Such cuts would eliminate the promised 90 to 100 percent match for expansion while leaving the current rates for traditional Medicaid in place. The current federal match rate for Medicaid in Utah is 70 percent.
Libertas Institute is primarily an educational institution, spreading the message of liberty through articles, lectures, media, and other outlets. Part of our work also entails proposing reforms that would make the laws more consistent with these principles. Here is our report of the 2015 legislative session. (And here’s how legislators voted.)
But first—we want to thank our staff, our board members, our attorneys, our intern, our citizen sponsors, and our research volunteers whose time and dedication made a significant impact this year!
The following is a summary of the bills we proposed:
House Bill 356, sponsored by Representative LaVar Christensen, enacts a number of provisions to protect parental rights by limiting the ability of the Division of Child and Family Services (DCFS) to take children into custody. Parents now enjoy a greater legal recognition of their right to seek a second medical opinion in allegations of medical neglect and the ability to oversee the medical care of their child already in state custody. The authority given to DCFS is now narrowed in several areas to minimize the opportunity of abuse. HB356 passed the House 71-1 and passed the Senate unanimously.
Senate Bill 82, sponsored by Senator Steve Uruqhart, follows up on last year’s successful reform limiting the ability of police to serve forcible entry (no knock or knock-and-announce) warrants. Officers must now wear uniforms when serving forcible entry warrants, must wait a reasonable amount of time in a knock-and-announce scenario, and may not use forcible entry when the alleged crime is drug use or possession, in the absence of a separate allegation. SB82 passed the Senate unanimously and passed the House 67-3.
Senate Bill 52, sponsored by Senator Howard Stephenson, imposes a variety of new reporting requirements on law enforcement and prosecuting agencies that seize and forfeit property. Following last year’s successful effort by Libertas Institute to reform civil asset forfeiture, we felt the need to increase transparency of this problematic power given to government to take the property of citizens not charged with—let alone convicted of—a crime. SB52 passed both the Senate and House unanimously.