The Legislature is trying again to cancel the First Amendment. A bill it is pondering would make you post a bond before you could petition the government for redress of grievances.
OK, not everyone. HB 399 by Rep. Mike Noel, R-Kanab, is aimed at everyone's favorite whipping boy, those pesky environmentalists who whine about clean air and water, ducks and birds and other impediments to growth.
The bill passed the House on Thursday and is now in the Senate. The previous two times the Legislature tried to punish environmentalists this way, the bills were vetoed as unconstitutional.
Rep. Noel, lacking a sense of history, is trying again.
HB 399 requires courts to set a bond if anyone challenges a permit by a state agency to build a road, drill an oil well or something similar. If the court holds up that project with an injunction or administrative stay, and the plaintiff loses, the bond pays any costs the miner or builder or driller incurs.
Supporters claim HB 399 will prevent frivolous lawsuits, but the U.S. Constitution says you can't make people pay to petition government. The state cannot say it is so right that if someone disagrees, they must risk their life savings to seek justice.
The most disturbing aspect of HB 399 is the lack of candor by Rep. Noel.
During the floor debate Thursday, he was asked if there had been two previous attempts to pass this bill that were vetoed.
He said no.
That's kind of true only in the case of SB 183 in the 2002 session, which was titled "Costs assessed for wrongfully enjoining a state project."
SB 183 would have required payment only if an environmental group sued and lost. It's the same goal, and still unconstitutional, but didn't require a bond up front.
However, HB 100 in the 2006 session had the same name as HB 399 -- "Environmental Litigation Bond" -- and required "entities that do business in the state to file a bond" with the state before beginning environmental litigation.
HB 399 tells the court to require the bond. There is no difference between the state requiring the bond, and the state telling the court to require the bond.
Then Gov. Jon Huntsman vetoed HB 100. Citing the U.S. and Utah constitutions, he said the bill "conflicts with federal law inasmuch as it seeks to impose additional requirements -- i.e., bonding requirements that are not imposed by, and are inconsistent with, federal law on Utah corporations."
Then Gov. Mike Leavitt vetoed SB 183, saying the bill would keep people from using courts to defend themselves against government. "It is fundamental to our democracy that citizens be able to take complaints to court. Government is not always right."
Rep. Noel is certainly not always right.
His best reason to cancel the First Amendment for environmentalists is the Legacy Highway. During Thursday's floor debate he said environmental groups delayed Legacy and "cost the state of Utah $400 million for that delay. It's simply unacceptable, and it wasn't that we did anything wrong."
Actually, Rep. Noel, Utah did do something wrong.
In its rush to build Legacy, Utah ignored the concerns of environmental groups and challenged them to sue. They did, and the federal 10th Circuit Court of Appeals said the environmentalists were right.
Environmentalists didn't cost Utah taxpayers $400 million. The state of Utah did.
Rep. Noel should put his own money where his mouth is.
Let him post a personal bond to cover costs of defending HB 399 if it passes and Gov. Gary Herbert ignores the wisdom of his predecessors.