Trump fails test for small government

We had high hopes for the new administration. There was talk of a new approach that would put the skids on regulatory overreach and overzealous enforcement. The president’s rejection of more than a dozen ill-considered rules under the Congressional Review Act was a good start. And the president’s executive order directing the EPA to revise the Obama era’s patently unlawful regulation that grossly expanded the scope of the Clean Water Act bodes well for the future. That regulation would have federalized almost all waters in the nation, public or private, natural or man-made, large or small. So broad was the regulation that it expressly excluded “puddles” from federal control. But not much else.

Even if the Obama administration didn’t recognize any meaningful limits on federal power, then surely the Trump administration would do so. Or so it seemed.

{mosads}But while federal and state regulators and tens of thousands of landowners across the country had their eye on the government’s invidious water rule, another more subtle but equally dangerous Obama-era action was working its way to the U.S. Supreme Court.

The previous administration designated 1,500 acres of private land in Louisiana as “critical habitat” for the dusky gopher frog. That determination essentially put the area off limits to the landowners who stand to lose up to $34 million in lost revenue so the land can be preserved for species conservation. But here’s the rub: The government admits the property is not suitable for use by the species and provides no conservation benefit to the frog. Instead, the Obama administration set the land aside in the “hope” it may be converted someday by someone to usable habitat.

When a trial court upheld this unprecedented land grab in Markle v. U.S. Fish and Wildlife Service, the service adopted a general rule authorizing federal regulation of any land in the country that could be modified for use as habitat for protected species. Because any property can be converted to habitat use with enough effort, no land is off limits to federal regulators.

While the water rule subjects virtually all waters to complete federal control, the habitat rule subjects virtually all land to complete federal control.

The Markle case, along with the new habitat rule, provided a test for the Trump administration. Like he did with the indefensible water rule, we expected the president to recall the egregious habitat rule and reconsider the government’s defense of the Fish and Wildlife Service in the Markle case, now pending in the Supreme Court. But, based on recent pleadings in the Markle case and in a similar case where the service designated thousands of acres of unsuitable land as “critical habitat” for the Gunnison sage-grouse, it appears the Trump administration has abandoned its promise to rein in runaway federal agencies, at least in the area of ESA regulations and will continue the previous administration’s practice of pushing the limits of federal power to the breaking point. The Trump administration has flunked the acid test for limited government. 

Hopper is a senior attorney with the Pacific Legal Foundation.