Fending-Off Regulatory Overreach in the Supreme Court: In Defense of Economic Liberty

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.

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About Luke Wake

Luke A. Wake is a senior staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. He is also working to advance small business interests in law review articles, including publications in the Berkeley Journal of Law & Ecology, the Texas Journal of Law and Politics, and Competition Magazine. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011); Damien M. Schiff, Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. L. Rev. & Pol. 97 (2012); Jarod M. Bona and Luke A. Wake, The Market-Participant Exception to State-Action Immunity From Antitrust Liability, J. of Antitrust and Unfair Competition of the State Bar of Ca., Vol. 23, No. 1, 156 (Spring 2014); James S. Burling and Luke A. Wake, Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages, in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51 (ALI-ABA Committee on Continuing Professional Education eds. 2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio. He is a member of the California Bar, the District of Columbia Bar, and the U.S. Supreme Court Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
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