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June 03, 2012
Judge Milan Smith Has Had It With the Ninth Circuit's Environmental Cases"Here we go again," Judge Milan Smith starts in his epic broadside (PDF) against the Ninth Circuit's anti-prosperity, bureaucracy-boosting environmental decisions. The Bush 43 appointee has had enough: I cannot conclude my dissent without considering the impact of the majority’s decision in this case, and others like it, which, in my view, flout our precedents and undermine the rule of law. . . . He goes on to note a Ninth Circuit decision that killed the San Joaquin Valley by foreclosing irrigation: Farmers, too, have suffered, and will continue to suffer, from the impact of similarly extreme environmental decisions. The Central Valley Project Improvement Act, Pub. L. No. 102-575, 106 Stat. 4600 (1992), requires that 800,000 acre feet of water in California’s Central Valley Project be designated for “the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures[.]” In San Luis & Delta-Mendota Water Authority v. United States, 672 F.3d 676 (9th Cir. 2012), the majority inexplicably read this requirement to mean that water counts toward that yield only if it “predominantly contributes to one of the primary purpose programs.” Id. at 697. This interpretation has absolutely no basis in the statutory text. The practical impact of this decision is that there will be less, perhaps far less, water for irrigation in the San Joaquin Valley’s $20 billion crop industry. The region’s farms and communities, and the thousands of people employed there, already have suffered because of the lack of water, with approximately 250,000 acres of farmland now lying fallow, and unemployment ranging between 20 percent and 40 percent. Judge Smith concludes: No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law. Excellent. I chopped out most of the legal portion of his analysis, so if you're interested, his dissent starts on page 40 of the PDF. | Recent Comments
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Oh Say Can You ONT?
Gator Baiter Cafe Target Extends Losing Streak; JPMorgan Downgrades Stock "Stakeholder Capitalism" Is Just Corporate Communism Quick Hits Biden Falls Again FLASHBACK: Biden Mocked Trump's Ability to Walk, Claimed Biden's Own Walking Ability Was Streets Ahead Foxweiser Has Lost 32% of Primetime Viewers (44% of the Younger Viewers Advertisers Are Interested In) NBC "News:" You Lower-Order Ruffians Are Not Permitted to Make Fun of a Noblewoman Like AOC. Why, It Simply Isn't Done! Christopher Wray: Since You Are Now Threatening Criminal Charges Against Me, I'll Allow Two Congressmen, Including Leftwing Firebrand Jamie Raskin, to View a Heavily-Redacted Version of the Bribery Document. How's That? The Morning Rant: Minimalist Edition Mid-Morning Art Thread Search
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