Amicus Brief Argues That Sound Science – Not The “Precautionary Principle” – Belongs In The CourtroomJanuary 5, 2021
The City of Bainbridge Island, Washington, has adopted a state-approved Shoreline Management Program (“SMP”), which requires property owners to set aside vegetation buffers and conservation easements to protect Puget Sound shoreline from the supposed ecological impacts of residential construction, landscaping, and recreational activities. Following an unsuccessful administrative appeal to the state Growth Management Hearings Board, shoreline property owners, represented by the Pacific Legal Foundation, filed state court litigation challenging the SMP, including on Takings Clause and other constitutional grounds. Although the Growth Board lacked authority to consider these constitutional claims, the Washington state courts—which have jurisdiction to consider the SMP’s constitutionality—held that any evidence supporting the property owners’ claims must be limited to the Growth Board’s administrative record. As a result, the state courts have barred the property owners from introducing expert scientific testimony and other evidence which, although not included in the administrative record, is needed to support their constitutional challenge in court.
The Pacific Legal Foundation has filed a petition for writ of certiorari requesting the U.S. Supreme Court to review the case and hold that barring the property owners from presenting scientific testimony and other evidence in support of their state-court constitutional challenge is a violation of due process. To support the certiorari petition, the Atlantic Legal Foundation has filed an amicus brief focusing on why the “precautionary principle” approach incorporated into the SMP is not an appropriate substitute for sound science in the courtroom.
Issue Areas: Property Rights; Sound Science in the Courtroom
Case: Preserve Responsible Shoreline Management v. City of Bainbridge Island, No. 20-787 (Sup. Ct.) (petition stage)
Question Presented: Does it violate the Fourteenth Amendment’s Due Process Clause for a state’s judicial review statute to bar the introduction of evidence outside the administrative record where the evidence is needed to resolve federal constitutional claims over which the agency lacked jurisdiction?
Background: The Washington Department of Ecology’s land-use planning guidelines state that “local governments shall . . . identify and assemble the most current, accurate, and complete scientific and technical information available that is applicable to the issues of concern.” Wash. Admin. Code § 173-26-201(2)(a) (emphasis added). Local governments must, “[a]t a minimum, make use of and, where applicable, incorporate all available scientific information . . . from reliable sources of science.” Id. (emphasis added). Instead, the City of Bainbridge Island adopted a voluminous Shoreline Master Program (“SMP”) that relies on the so-called “precautionary principle” to fill or circumvent critical data gaps in its legislative record. See SMP § 1.2.3 (“The ‘precautionary principle’ was employed as guidance in updating the policies and regulations of this SMP. . . . [The precautionary principle] states, in part that ‘as a general rule, the less known about existing resources, the more protective shoreline master program provisions should be to avoid unanticipated impacts to shoreline resources.’”) (emphasis added).
Based on the Supreme Court’s decisions in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard¸ 512 U.S. 374 (1994), the shoreline property owners contend that the SMP’s conservation easement requirements subject them to “unconstitutional conditions,” and thus, an unconstitutional (i.e., uncompensated) taking of their private property in return for the granting of land-use permits. In Nollan and Dolan the Court “held that a unit of government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a ‘nexus’ and ‘rough proportionality’ between the government’s demand and the effects of the proposed land use.” Koontz v. St. Johns River Water Management District, 570 U.S. 595, 599 (2013).
To demonstrate that the SMP fails to satisfy the Nollan/Dolan nexus/proportionality test, the property owners sought to introduce expert scientific testimony and other evidence in the state superior court—the first forum with jurisdiction to consider their constitutional challenge to the SMP. But that court rejected the property owners’ request, holding that it is bound by the administrative record generated by the Growth Management Hearings Board, a state agency that has no authority to decide constitutional issues. The Washington Court of Appeals affirmed preclusion of the property owners’ proffered testimony. After the Washington Supreme Court refused to hear the property owners’ appeal, they filed their certiorari petition in the U.S. Supreme Court.
ALF’s Amicus Brief: In its petition-stage amicus brief, authored by Lawrence S. Ebner, ALF focuses on the precautionary principle. The amicus brief explains that the principle’s widely debated “better safe than sorry” approach to environmental regulation is predicated on the lack of adequate scientific information. As a result, precautionary principle assumptions about the nature and extent of environmental risks cannot be substituted for scientific information that is available—such as the type of scientific information the property owners seeks to present in support of their constitutional challenge to the SMP. More specifically, according to the certiorari petition, at least two scientific experts are prepared to provide testimony relevant to the types of data that the City would be required to provide in order to establish site-specific nexus and proportionality for the SMP’s mitigation measures (e.g., mandatory conservation easements).
ALF’s amicus brief argues that the state courts’ preclusion of this type of scientific evidence is unfair: According to the state court of appeals, the shoreline property owners are entitled to challenge the SMP’s constitutionality in a state trial court only after participating in an administrative proceeding that was limited by law to non-constitutional issues, but the property owners cannot introduce expert scientific testimony to support their constitutional challenge because the state APA restricts the state trial court to the administrative record. This ruling makes no sense. Instead, the property owners should be entitled to present testimony and other evidence, albeit outside the existing administrative record, to rebut whatever evidence—or precautionary principle assumptions—the City offers in its attempt to demonstrate that the SMP meets the Nollan/Dolan nexus and proportionality standards.
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Read more Atlantic Legal Foundation amicus briefs authored by Larry Ebner
Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation.