Supreme Court rules landowner can skip state court and file federal suit in property-rights case

In this Sept. 21, 2018 file photo, Pennsylvania resident Rose Mary Knick stands next to a private property sign on her farmland in Lackawanna County. The Supreme Court is siding with Knick in a case that gives citizens another avenue to pursue claims when they believe states and local governments have harmed their property rights. (Jessica Gresko/AP)

By Jessica Gresko | AP – June 21

WASHINGTON — The Supreme Court ruled Friday to allow people to sue in federal court when they believe states and local governments have harmed their property rights, handing a victory to a Pennsylvania woman fighting her town over a cemetery ordinance.

The high court ruled 5-4 along ideological lines in favor of Rose Mary Knick. She tried to bring a lawsuit in federal court after her town passed an ordinance that requires anyone with a cemetery on their land to open it to the public during the day.

A town official found several grave markers on Knick’s farmland in eastern Pennsylvania’s Lackawanna County, but she disputes whether there’s actually a small, family cemetery on her 90-acre property .

Regardless, Knick argued that in adopting the ordinance in 2012 and applying it to her, local officials were, in essence, taking her property and opening it to the public without paying her for it.

A federal court threw out Knick’s case, ruling she had to go to state court first. But after the Supreme Court’s ruling, Knick will be able to pursue her case in federal court.

Property owners with complaints like Knick’s would often prefer to pursue their cases in federal court, Knick’s lawyers have said, because they may view them as more neutral or objective than state courts, which are sometimes seen as being influenced by local politics.

Local governments previously had the power to take a case like Knick’s that was filed in state court and move it to federal court, but citizens didn’t have the option to begin their cases in federal court.

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Pennsylvania Senators Casey and Toomey back PFAS bills in Congress

Pennsylvania Senators Bob Casey and Pat Toomey

Kyle Bagenstose reports for the Bucks County Courier-Times

U.S. Sens. Bob Casey and Pat Toomey have thrown their weight behind a package of policies aimed at addressing nationwide contamination of per- and polyfluoroalkyl substances, their offices said Thursday.

The policies, if ultimately passed, would have significant implications for one of the country’s preeminent environmental issues. The unregulated chemicals have been found in the drinking water of tens of millions of Americans, including at nationally high levels in several Bucks and Montgomery County water supplies. The policies now being pushed by Casey, Toomey and colleagues would require the Environmental Protection Agency to set a federal drinking water standard for two of the most hazardous PFAS substances within two years, require that manufacturers report how much PFAS they release into the environment, and give financial and strategic aid to states and towns, among other measures.

The policies are a sign of crucial bipartisan appetite to act on PFAS in Congress. Earlier this year, the EPA released a “PFAS Action Plan” and administrator Andrew Wheeler announced his “intention” to regulate the chemicals in drinking water and the environment.

But residents of impacted communities and many environmental groups decried the plan as lacking firm commitments and deadlines. It appears those feelings have spilled over into Congress, which held numerous committee hearings on the chemicals this year.

In a prepared statement, Toomey particularly touted parts of the package that would add PFAS to a list of chemicals addressed by the Toxic Release Inventory, an EPA data program that publicly displays what chemicals are being released from industrial sites, as well as language that requires the EPA to develop guidance on how to dispose of PFAS.

“All Pennsylvanians — particularly the residents of Bucks and Montgomery counties — should be fully aware of any risks associated with PFAS in drinking water,” said Toomey, R-Allentown. “The EPA’s Action Plan announced earlier this year is a step in the right direction, but this bipartisan measure will do more to inform impacted communities through increased accountability and transparency.”

Casey also touted the measures.

“Listing PFAS on the EPA’s Toxic Release Inventory will help us better understand how PFAS enters our environment and will further our remediation efforts,” Casey, D-Scranton, said in a prepared statement. “I support efforts to get to the root sources of PFAS contamination and chart a path forward to getting PFAS below toxic levels in our environment and ensuring Pennsylvanians have clean water.”

The proposed policies are following the same path that PFAS advocates in Congress used in prior years to make headway on addressing the chemicals. On Thursday, the policies were packaged together and approved by the Senate Environment and Public Works Committee as an amendment to the National Defense Authorization Act, one of two must-pass military spending bills.

There’s still a long road ahead: The amendments must survive deal-making and a final vote in the full Senate and House, and then the process must be repeated again in a separate appropriations bill. But the strategy wound up a winner in years past when Casey, Toomey, and colleagues such as U.S. Reps. Brendan Boyle, D-2, of Philadelphia, and Brian Fitzpatrick, R-1, of Middletown, helped push through tens of millions of dollars in funding for PFAS cleanup and a nationwide health study by tagging them on the appropriations bills.

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House passes bill to prevent oil drilling in the Everglades

But not a single Republican voted for the larger spending bill of which the initiative was a part, making its passage in the Republican-controlled Senate uncertain.

By DAVID FLESHLER | SOUTH FLORIDA SUN-SENTINEL

An initiative to thwart an oil drilling plan in the Everglades passed the U.S. House of Representatives Wednesday, putting a potential hurdle in front of a controversial project proposed for western Broward County.

But not a single Republican voted for the larger spending bill of which the initiative was a part, making its passage in the Republican-controlled Senate appear uncertain.

U.S. Rep. Debbie Wasserman Schultz, a Democrat whose district covers parts of Broward and Miami-Dade counties, proposed the initiative as an amendment to a spending bill for federal agencies involved in energy and water.

“We must do all we possibly can to protect our sensitive River of Grass,” Wasserman Schultz said in a statement Wednesday. “Drilling within the Everglades Protection Area is reckless, rapacious and symbolizes just how much those who advocate for the senseless pursuit of fossil fuels will risk, even if it destroys our most treasured ecosystems. It’s absurd it even has to be said, but we must fight any drilling in the Everglades.”

John Kanter, president of the company, declined comment.

The amendment would impose a one-year moratorium on the issuance of wetlands permits by the Army Corps of Engineers in the Broward portion of the Everglades. The moratorium would last from Oct. 1, 2019, to Sept. 30, 2020.

Kanter Real Estate LLC, which has won a series of court fights over its proposal for an exploratory well in western Broward County, needs a Corps permit to destroy wetlands on the site.

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‘I’m scared to death of what the Supreme Court might do’

A new case on the Supreme Court’s docket, Atlantic Richfield v. Christian, has experts on edge about potential consequences for environmental cleanups across the country.

Ellen M. Gilmer, E&E News reporter
Greenwire: Thursday, June 20, 2019

Anaconda Smelter. Photo credit: Butte Citizens’ Technical Environmental Committee — The Anaconda Smelter Stack and surrounding Superfund area in Montana. Butte Citizens’ Technical Environmental Committee

Justices last week agreed to review Atlantic Richfield v. Christian, a long-running dispute involving an old copper production area in Montana. The 300-square-mile Anaconda Co. Smelter site is one of the oldest and largest in the Superfund system.

Some 9,000 residents live within the Superfund site’s borders, many atop arsenic-laced soil and contaminated groundwater. With an EPA-approved cleanup process dragging on, dozens of landowners went to state court in 2008 to force smelter owner Atlantic Richfield Co. to do more for them.

State courts allowed the case to proceed, despite opposition from Atlantic Richfield, which then appealed the decision to the nation’s highest court.

Now the Supreme Court will determine whether the landowners can pursue a key legal claim that Atlantic Richfield must fund restoration work that goes beyond what EPA approved for the area (Greenwire, June 10).

The dispute is causing heartburn among Superfund experts, who caution the case could have unintended consequences.

“In a way, allowing these landowners to be able to question what EPA does here seems like a good environmental thing, but if we’re not careful, it could be open season on litigating EPA remedies in advance,” Lewis & Clark Law School professor Craig Johnston said.

“That certainly is not where we want to be at the end of the day.”

Atlantic Richfield and EPA likewise warn of legal chaos if the landowners prevail. They note that the federal Superfund law — the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA — was intended to give EPA the final say on remediation plans for contaminated sites.

“The [state court] decision also invites thousands more landowners across the State to sue to supplant EPA’s remedy or to implement remedial efforts themselves without EPA’s authorization,” lawyers for Atlantic Richfield told the Supreme Court.

“And the decision provides a road map for other states to bless similar theories of recovery that run roughshod over CERCLA’s calibrated scheme,” they said.

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Accusing the New York Times of ‘Treason,’ Trump Crosses a Line, says the Wall Street Journal

By A.G. Sulzberger, June 19, 2019, Wall Street Journal
6:59 pm ET

New York Times, Wall Street Journal, Trump, treason, freedom of the press, press freedom — President Trump speaks during a rally in Orlando, Fla., June 18. PHOTO: MANDEL NGAN/AFP/GETTY IMAGES

First it was “the failing New York Times.” Then “fake news.” Then “enemy of the people.” President Trump’s escalating attacks on the New York Times have paralleled his broader barrage on American media. He’s gone from misrepresenting our business, to assaulting our integrity, to demonizing our journalists with a phrase that’s been used by generations of demagogues.

Now the president has escalated his attacks even further, accusing the Times of a crime so grave it is punishable by death.

On Saturday, Mr. Trump said the Times had committed “a virtual act of treason.” The charge, levied on Twitter , was in response to an article about American cyber incursions into the Russian electrical grid that his own aides had assured our reporters raised no national-security concerns.

Few paid much attention. Many news organizations, including the Times, determined the accusation wasn’t even worth reporting, a sign of how inured we’ve grown to such rhetorical recklessness. But this new attack crosses a dangerous line in the president’s campaign against a free and independent press.

Treason is the only crime explicitly defined in the U.S. Constitution. The Founding Fathers knew the word’s history as a weapon wielded by tyrants to justify the persecution and execution of enemies. They made its definition immutable—Article III reads: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”—to ensure that it couldn’t be abused by politicians for self-serving attacks on rivals or critics. The crime is almost never prosecuted, but Mr. Trump has used the word dozens of times.

There is no more serious charge a commander in chief can make against an independent news organization. Which presents a troubling question: What would it look like for Mr. Trump to escalate his attacks on the press further? Having already reached for the most incendiary language available, what is left but putting his threats into action?

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Pa. mushroom farmer wonders why Trump’s immigration police are out to get him

Joseph N. DiStefano | @PhillyJoeD | JoeD@inquirer.com

During the week of June 24, the president tweeted recently, Immigration and Customs Enforcement “will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States.”

Three days before he made that promise, I drove uphill between the concrete and wood structures of a cluster of Chester County mushroom farms, pungent from composted manure and compressed sawdust, in an intensely farmed southern corner of the county, “America’s Mushroom Capital.”

It’s a place where workers are already scarce, foreigners take the hard jobs, and growers wonder why their government seems to be pushing them away from their family businesses of filling the produce aisles.

In one farm office, the manager showed me a new letter from the Department of Homeland Security, which runs ICE. The assistant special agent in charge wrote that ICE agents had stopped by recently to copy employment records. Over the next four weeks, they had checked those documents, and found that some of the workers “appear, at the present time, not to be authorized to work in the United States.”

Why? Some work documents appeared to “pertain to other individuals.” Others didn’t match official records, provide employment authorization, or had expired. For all those reasons and more, they failed to “satisfy the Form I-9 employment eligibility verification requirements of the INA,” the Immigration and Nationality Act of 1952. As amended.

The letter listed the familiar Spanish names: Carlos, Jesus, Maria, Miguel. Gonzalez, Martinez, Zavala. In combinations and hyphenations. With hire dates, Social Security numbers, and the status of those numbers, marked “Invalid.” More than two dozen.

Unless they can come up with new, valid documents, “they are considered by [Homeland investigators] to be unauthorized to work in the United States.” If he keeps them on, the farmer may be subject to “civil penalties ranging from $548 to $4,384 per unauthorized alien for a first violation.” And more if ICE finds this has happened here before.

“This is a very serious matter that requires your immediate attention.”

Within 10 business days, the assistant special agent in charge concluded, the employer must either verify the workers’ status “or take other appropriate actions.” The penalties could include “civil” fines. Or worse: “Criminal charges may be brought against any person or entity that engages in a pattern or practice of knowingly hiring or continuing to employ unauthorized aliens.”

Most of the men and women on the list are already gone, the farm manager tells me. If the last seven from the list can’t find valid papers and also end up leaving the farm, some of their fully documented family members will go with them, reducing his workforce even more.

The owner had invited me so he could vent about the damage. The manager asked me not to name the farm. He says ICE people have been polite and professional. But why risk annoying the assistant special agent in charge?

The owner and the manager don’t want to lose these workers. They don’t know how they are going to replace them.

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