Month: August 2021

Yesterday a federal district court judge in Arizona vacated and remanded the Trump Administration’s “Navigable Waters Protection Rule” (NWPR) which adopted a somewhat narrow definition of “waters of the United States” (WOTUS) under the the Clean Water Act (CWA). This definition is important because it determines the scope of federal regulatory authority under the CWA, including what wetlands are subject to CWA permitting requirements as part of the “waters of the United States.”

The decision by Judge Rosemary Marquez in Pasqua Yaqui Tribe v. U.S. Environmental Protection Agency is merely the latest judicial decision in a decades-long fight over the scope of CWA regulatory jurisdiction. These fights date back to the 1980s, when the U.S. Army Corps of Engineers and Environmental Protection Agency first adopted expansive interpretations of their regulatory authority under the CWA. In the 2000s the agencies suffered two major losses in the Supreme Court (SWANCC and Rapanos), but failed to trim their regulatory ambitions.

The Obama Administration adopted an expansive WOTUS rule in 2015, and it too faced judicial skepticism, but was withdrawn by the Trump Administration in 2019 before reaching the Supreme Court on the merits. The NWPR was adopted in April 2020, and has now been vacated before it was even two years old.

Judge Marquez was aided in her conclusion that the NWPR by the agencies’ acquiescence to many of the plaintiffs’ arguments. Given the switch in adminstrations, the agencies conceded “substantial concerns about certain aspects of the NWPR . . . including whether the NWPR adequately considered the CWA’s statutory objective” and “the effects of the NWPR on the integrity of the nation’s waters.” Such errors, Judge Marquez concluded, were fundamental, substantive flaws” in the rulemaking that required vacatur.

Left unaddressed in the opinion is the fact that such concerns were decisively rejected by Justice Kennedy in his controlling Rapanos opinion. Waters and wetlands must have “significant nexus” to “navigable waters” to fall within the CWA’s ambit, Justice Kennedy explained, cautioning that “environmental concerns provide no reason to disregard the limits in the statutory text.” The Trump NWPR, despite its flaws (which I discussed here), was the first Army Corps and EPA rule to take such limits seriously in over thirty years.

An obvious question is what rule controls CWA jurisdiction now that the NWPR has been vacated. Judge Marquez has asked for further briefing on whether to vacate the 2019 repeal of the Obama WOTUS rule as well. If the WOTUS rule is not reinstated, the Army Corps and EPA would have to resort to the pre-2015 regulations that the Supreme Court found overly expansive in SWANCC and Rapanos (and which, as written, almost certainly exceed the scope of the Commerce Power). This would hardly promote regulatory certainty.

As I noted last week in discussing the latest developments in the Sackett case, whether a given water or wetland satisfies those regulations cannot determine whether it is subject to federal regulation because those regulations exceed the scope of the CWA (and likely exceed the scope of Congress’ enumerated powers as well). This would suggest the agencies are better off making case-by-case determinations as to whether a given parcel is part of the “waters of the United States,” but that is a far more time and labor-intensive process than applying regulatory standards.

Another question is what happens to all of the jurisdictional determinations that were made under the now-vacated rule. One might think that, insofar as the NWPR was arbitrary and capricious, agency determinations that given projects or parcels were not subject to federal regulation would be vulnerable. But not so fast. The agencies have committed to respecting prior jurisdictional determinations for five years once issued.

In addition, under Regents (the DACA decision), those who received favorable jurisdictional determinations would seem to have substantial reliance interests that the agencies would have to consider before seeking to reverse course. As in Regents, the fact that the agency action relied upon may have been arbitrary or unlawful does not matter. Thus I am inclined to think the agencies will respect those jurisdictional determinations issued under the prior rule.

The big question going forward will be how aggressive the Biden Administration chooses to be when it issues a new WOTUS rule of its own. A rule that pushes the boundaries of the Rapanos decision (as the Obama WOTUS rule did) is almost certain to be struck down. An aggressive regulatory strategy could even provoke the sort of harder edged constitutional ruling that the Army Corps and EPA previously avoided. Yet given these agencies’ regulatory histories, I doubt they will take a cautious course.

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One day after nearly 20 years of war in Afghanistan came to an end, President Joe Biden said he was closing the book on an inglorious and expensive phase of American foreign policy.

“This decision about Afghanistan is not only about Afghanistan,” Biden said in a speech Tuesday from the White House. “It’s about ending an era of major military missions to remake other countries.”

That’s a remarkable, and welcome, sentiment to hear expressed by an American president.

Most Americans had long ago soured on the idea of nation-building in Afghanistan (and Iraq) and had voted for a series of presidential candidates who promised (and then failed) to put an end to America’s longest war. In the end, the war that enjoyed bipartisan support for years was ended in a bipartisan fashion. Former President Donald Trump put the Pentagon on the clock when his administration reached a deal with the Taliban to withdraw by May 2021. Biden postponed that deadline but held firm when it mattered.

In doing so, he’s created an opportunity to chart a new way forward for America’s foreign policy. Far from promising isolationism, Biden said Tuesday that “human rights will be the center” of his foreign policy. “But the way to do that is not through endless military deployments,” he added, stressing that America should instead use its prestigious diplomatic and economic tools to work with belligerent countries. If that shift materializes, it should be welcomed by both Americans and the rest of the world.

Much of Biden’s speech on Tuesday was aimed directly at the war hawks who have criticized his administration’s handling of the withdrawal. In particular, Biden took aim at the bizarre talking point that has emerged in recent weeks suggesting that the status quo in Afghanistan was sustainable prior to the departure of U.S. troops and the ensuing collapse of the Afghan government.

“The real choice,” Biden said, was “leaving or escalating.”

“I was not going to extend this forever war,” he added, “and I was not extending a forever exit.”

He’s right. The lack of bloodshed between the Taliban and U.S. forces over the past year and a half was the direct result of America’s promise to withdraw. Keeping American forces in Afghanistan past the August 31 deadline would have invited more fighting and the pointless loss of more American lives.

Claims about the sustainability of the past year’s cessation of hostilities were never more than a thin cover for perpetual, neverending war. When CNN gave John Bolton, one of the chief architects of the disastrous nation-building foreign policy of the past decades that Biden is now seeking to undo, a platform to criticize Biden’s withdrawal last week, Bolton said the “fundamental” error Biden had made was “withdrawing at all.” The mask slips.

Reasonable people can disagree about how much blame Biden deserves for the messy withdrawal. Certainly, it is shameful that so many Afghans who helped America over the years seem to have been left behind—in some cases because of bureaucratic holdups that should be blamed on America’s broken immigration system, not because the timetable for withdrawal was insufficient.

What everyone on this side of defense contractors and Bolton should be able to agree upon, however, is that America was no longer pursuing any meaningful national security objectives in Afghanistan.

With an eye towards the future, Biden said Tuesday that America should learn two lessons from the nearly two-decade misadventure in Afghanistan. First, the military should be used only to pursue missions “with clear, achievable goals, not ones we’ll never reach.” Second, those missions must be focused on “the fundamental national security interests of the United States.”

The war in Afghanistan failed on both counts. Biden was right to throw the ball back to the hawks.

“To those asking for a third decade of war in Afghanistan, I ask: What is the vital national interest?” Biden said.

There isn’t one. There hasn’t been one in a long time. The war in Afghanistan is over. For that, we should be thankful.

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Mac Isaac v. Twitter, Inc., decided yesterday by Judge Beth Bloom (S.D. Fla.), stems from Twitter’s blocking the New York Post’s about information gotten from Hunter Biden’s laptop, which had apparently been abandoned at John Paul Mac Isaac’s computer repair shop (after it was dropped off so he could “recover information from damaged Mac computers owned by Hunter Biden).

Mac Isaac apparently passed the computer or copies of the material from the computer to the FBI and to Rudy Giuliani’s lawyer; from there it made its way to the New York Post, but when the Post wrote about it, Twitter blocked the Post’s Tweets on the grounds that they supposedly came from “hacked material.” (“Pursuant to [Twitter’s] Hacked Materials Policy, a ‘hack’ is defined as ‘an intrusion or access of a computer, network, or electronic device that was unauthorized or exceeded authorized access.'”)

Mac Isaac sued for libel, but the judge concluded that the statement didn’t sufficiently identify Isaac (though later press accounts did identify him):

Plaintiff alleges that the Explanations are defamatory per se because they created the belief among members of the community that Plaintiff: (1) committed a crime— hacking; (2) was subject to hatred, ridicule, contempt, or disgrace—threats of harm and negative business reviews; and (3) was injured to his trade or business as a result—closed his business….

Specifically, Defendant first argues that Plaintiff’s defamation claim fails as a matter of law because the Explanations “do not name Plaintiff or his business” or even “permit an ‘ascertainable implication’ that they were about Plaintiff.”, however, maintains that the Explanations themselves need not specifically identify Plaintiff to be defamatory and Plaintiff is permitted to present extrinsic evidence in the form of the NY Post Article to demonstrate that the Explanations referred to him….

Florida courts have long held that if a defamed person is not named in the defamatory publication, “the communication as a whole [must] contain[ ] sufficient facts or references from which the injured person may be determined by the persons receiving the communication.” The relevant inquiry is whether “the average person upon reading [the] statements could reasonably have concluded that the plaintiff [ ] was implicated[.]”

Here, while the Amended Complaint alleges that the NY Post “published a photo of the Repair Authorization … without blurring the business name thereby notifying the public where Biden had dropped off his laptop[,]” the Explanations did not include the subject photo. Nor did the Explanations mention Plaintiff, the Mac Shop, or provide any other descriptive information identifying Plaintiff as a purported “hacker.”

In his submissions, Plaintiff seemingly concedes that the Explanations did not reveal his identity, but nonetheless avers that the Explanations “should not be evaluated in a vacuum and extrinsic evidence such as the NY Post article should be considered in order to show that the [Explanations] were referring to Plaintiff as a ‘hacker’ and/or the source of the confidential information.” As such, Plaintiff seeks to impose liability upon Defendant based upon external facts and statements attributed not to Defendant, but rather unaffiliated third parties. However, Plaintiff’s extrinsic evidence theory is flawed for several reasons.

First, the law in Florida dictates that defamation per se must be “actionable on its face” and does not “require[ ] additional explanation of the words used to show that they have a defamatory meaning or that the person defamed is the plaintiff.” For example, in Scobie v. Taylor (S.D. Fla. 2013), the court explained that defamation claims can be proven in either of the following ways: (1) defamation per quod, which “requires an additional explanation of, or an interpretation of innuendo suggested by the words used to demonstrate the defamatory meaning or that the plaintiff is the subject of the statement[,]” or (2) defamation per se, which “does not require any additional explanation in order to prove the defamatory nature of the statement.” The critical distinction between these actions is that in per se cases, “consideration is given only to the ‘four corners’ of the publication and ‘the injurious nature of the statement’ ” must be apparent from the words of the publication itself. Thus, because Plaintiff has asserted a claim for defamation per se, looking outside the four corners of the Explanations to show that “the person defamed is plaintiff” would run afoul the very nature of a per se action….

The Court is certainly sympathetic to the events that took place and could envision a plausible claim had the explanations identified the “Mac Shop,” “a Delaware repair shop” or even included a photo of the Repair Authorization. However, such is not the case here, and the law will not subject Defendant to liability where it was “meticulous enough” to preserve Plaintiff’s anonymity [within the four corners of the Explanations]….

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