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Attorney General Buddy Caldwell tells Corps of Engineers state has emergency powers to build barrier islands



May 24, 2010 - Louisiana Attorney General Buddy Caldwell sent a letter to the U.S. Army Corps of Engineers Sunday advising them that the State of Louisiana was within its rights to rebuild barrier islands in order to combat the Gulf of Mexico oil spill.

Caldwell advised Lt. Gen. Robert L. Van Antwerp, commanding general of the Corps, that under the U.S. constitution the federal government does not have the legal authority to deny a state the right to conduct such emergency operations to protect its citizens and territory.

The letter cites recent interpretations of the 10th Amendment to the Constitution, which reserves to the states those powers not specifically granted to the federal government. Caldwell contends that the statues governing fill permits usually required for such construction lack the necessary "clear statement" from Congress that the laws were intended to divest the states of their traditional emergency powers.

Caldwell ends by saying advising Antwerp to direct the New Orleans District of the Corps of Engineers to issue emergency permits. He also warns that if the district office "persists in its illegal and ill-advised efforts" to block the construction of the barriers, he will advise Gov. Bobby Jindal to go forward with the plans and challenge the Corps authority in court.

http://www.nola.com/news/gulf-oil-spill/index.ssf/2010/05/attorney_general_buddy_caldwel.html


STATE OF LOUISIANA
DEPARTMENT OF JUSTICE
OFFICE OF THE ATTORNEY GENERAL
JAMES D. BUDDY" CALDWELL
ATTORNEY GENERAL

May 23, 2010

Lieuteuant General Robert L. "Van" Van Antwerp
Commanding General of the US Army Corps Engineers
Headquarters, US Army Corps of Engineers
441 G. Street, NW
Washington, DC 20314-1000

Dear General Van Antwerp:

I am writing you personally in the hope that an unnecessary and divisive constitutional confrontation between the federal government and the State of Louisiana can be avoided.

As you may know from news reports, the State of Louisiana is attempting to construct or re-build a system ofbarrier islands to prevent or mitigate the destructive effects of the huge BP Deepwater Horizon oil spill from coming ashore in sensitive coastal areas of Louisiana. We were recently informed that some employees of the New Orleans District are inclined to deny a routine request for a dredge and fill permit for this work.

The purpose of this letter is to inform you of Louisiana's legal position that under the Constitution and laws of the United States, the federal government does not have the legal authority to deny a state the right to conduct such necessary emergency response actions to prevent or mitigate natural resource damages to its territory and the property of its citizens (except perhaps ifthe President personally takes over direction of the mitigation effort, which has not occurred).

The constitutional problem of reconciling the powers reserved to the states under the 10th Amendment with the broad powers ofthe federal government to regulate under the Commerce Clause has been one of the most divisive and controversial legal issues in our federal union over the last few decades. In recent years, this conflict has generally been avoided by requiring a "clear statement" from the Congress that it actually intends to attempt to divest states oftheir traditional powers.

Nothing in the broad, general language of CWA §404 regarding fill permits provides the necessary "clear statement" by Congress that would be required under current Supreme Court case law in order to divest a state of its traditional powers to prevent harm to its natural resources in an emergency. Compare Solid Waste Agency o/Northern Cook County v. United States Army Corps o/Engineers, 531 Us. 159, 174 (2001) ("significant constitutional questions" and "nothing approaching a clear statement from Congress that it intended § 404(a) to reach an abandoned sand and gravel pit"; "Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose to 'recognize, preserve, and protect the primary responsibilities and rights of States ... to plan the development and use ... of land and water resources ... .' 33 U.S.C. § 1251 (b).") Similarly, here the specific language ofCWA §311(e)(I) quoted in footnote 1 above does not reflect the "clear statement" necessary to displace traditional state authority but instead clearly contemplates that "action ... by a State" may proceed in parallel with federal efforts to prevent or mitigate "an imminent and substantial threat to ... shorelines, beaches, habitat etc .... because of an actual or threatened discharge of oil..." In addition, the Coastal Zone Management Act, specifically directs your agency, as well as all other federal agencies, to defer to state policies to protect the coastal zone, in which these barrier islands would be located. This is the exact opposite of a "clear statement" by Congress to divest state authority, but instead reflects a political judgment by the Congress to accommodate both state and federal interests. Moreover, the barrier islands would be located on lands that are owned by the State, and held in public trust for the people ofthe State. Therefore, the State's interest in their management is particularly high and the federal interest is attenuated.

I urge you to take counsel with others in the Administration, including the Department ofJustice and the Office of General Counsel of the Army, before allowing the New Orleans District to provoke an unnecessary constitutional confrontation between state and federal governments at a time that we all ought to rise above petty jurisdictional concerns to work together to prevent an unprecedented environmental disaster in the making.

A legal confrontation over the scope of the Corps's authority under CWA §404 to regulate state actions in emergency situations may result in adverse legal precedents being set in the courts or in the Congress that further restrict the authority of your agency.8 A better outcome for all concerned would be for you to direct the New Orleans District to issue emergency permits under the September l3, 2007 General Permit for emergency operations in the New Orleans District.9 This General Permit specifically provides for "emergency dredging and placement of fills to confine oil or hazardous materials" and defers the question of restoration or leaving the barriers in place permanently until after the emergency has passed. Alternatively, we urge you and your staff to find some other creative way to avoid a confrontation.

We prefer to avoid this fight and would rather accommodate both your authority and ours. However, if the New Orleans District persists in its illegal and ill-advised efforts to block necessary emergency actions by the State ofLouisiana to construct the barriers needed to prevent or mitigate immense natural resource damage from occurring to our coastal zones, I will have no choice but to advise the Governor to go forward with our plans to construct the barrier islands without a fill permit from the Corps in order to set up a legal test of your statutory and constitutional authority. This unnecessary legal confrontation can and should be avoided by issuing your prompt approval, as promised in the General Permit.

If you need any further information, or wish to set up a meeting to discuss, please contact me, or my First Assistant Trey Phillips (w:225-326-6769 or c:225-588-5180) or outside counsel assisting this office with these issues, E. Donald Elliott (w:202-303-l120 or c:202 256-4149) or Allan Kanner (w:504-524-5777 or c: 504-450-2020).

Very truly yours,
JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL

cc: U.S. Coast Guard Commandant Admiral Thad Allen, National Incident Commander John McHugh, Secretary of the Army Ignacia S. Moreno, Assistant Attorney General for Environment and Natural Resources David Hayes, Deputy Secretary of the Interior Gary Guzy, Deputy and General Counsel, Council on Environmental Quality Craig R. Schmauder, Deputy General Counsel of the Army (Civil Works and Environment) Chief Counsel, U.S. Army Corps of Engineers.

http://media.2theadvocate.com/documents/AGlettertoCorpsMay23.pdf