As small business owners know all too well, federal agencies are stepping up their enforcement activities all across the country. Over the past few years we have seen agencies taking increasingly aggressive positions to extend their regulatory reach, and all too often in entirely unfounded ways. This trend is of great concern for small business owners, and reigning in rouge agencies remains a top priority of the NFIB Legal Center. Unfortunately, government bureaucrats are not the only one’s taking cavalier legal positions these days.
We are also working to defend small business against opportunistic and ideologically motivated litigants who seek to bring baseless claims. These litigants can be just as aggressive as federal regulators in calling upon the courts to impose regulatory restrictions on reasonable—and entirely legal—business practices. Though we all recognize the importance of complying with the law, we are fighting against unfounded lawsuits which seek to impose greater regulatory burdens, and to create new liabilities, for employers. Whether the lawsuit is initiated by Big Labor, radical environmentalists or overly zealous regulators, we are taking an unflinching stand against regulatory abuse.
In our latest filing in the U.S. Supreme Court, we addressed the issue of regulatory overreach in a brief in support of businesses in the timber industry. We filed a “friend of the court” brief this week in Georgia-Pacific West v. NEDC, a case in which environmental organizations challenged a long-standing regulation which allows timber businesses to use and maintain forest roads without obtaining a costly Clean Water Act permit. Despite the fact that Oregon law allows timber businesses to use and maintain these roads without obtaining any such permit, the environmentalists argued that timber businesses should be required to obtain a federal permit under the Clean Water Act because stormwater runoff from forest roads will eventually find its way into creeks and rivers. The only problem with that argument is that the Clean Water Act doesn’t say that permits are required in this situation.
The Clean Water Act is simply ambiguous. Indeed, it is unclear whether Congress intended to require timber companies to obtain permits in cases like this. Moreover, states like Oregon have already established policies governing timber harvesting activities which adequately address local environmental concerns.
In our brief, we argued that it would be unreasonable to interpret an ambiguous provision in a federal statute as taking away our economic liberties. As we argued to the Court, the Constitution presumes that citizens are at liberty. For this reason, neither government regulators nor ideological groups should get away with rewriting ambiguous statutes to extend the reach of federal regulations. If our arguments are accepted, small business owners will be in a better position to defend against regulatory overreach when legal disputes arise. Whether dealing with a tax issue, property rights, labor disputes or any regulatory matter, we argue that the constitutional presumption of liberty protects small business and the right of free enterprise.
