Thursday, March 22, 2012

Supreme Court Rules Against the EPA

In a rare unanimous ruling, the Supreme Court has found in favor of an Idaho couple, Mike and Chantell Sackett, in their fight against the Environmental Protection Agency (EPA).  The Sacketts had bought a lot in 2005 within an established subdivision, surrounded by homes and with no direct access to nearby Priest Lake, and had begun construction on their retirement home in 2007 when federal officials arrived and ordered a halt to the building, declaring that the lot was subject to wetlands requirements.  They were ordered to stop construction and return the lot to its original condition as defined by the EPA, which included planting vegetation that was never there to begin with.

When the couple asked for evidence, the EPA pointed them to a National Fish and Wildlife Wetlands Inventory, but upon inspection the couple found that their property was not listed.  When informed, the EPA replied that the inventory was wrong and that their directive stood.  The couple was told that they had no recourse through the courts or any other venue except a potentially years-long wetlands permit process through the Corps of Engineers which could eventually cost them several times what the land was worth, and the EPA said that the permit would not be approved at any rate, and this after a indeterminate amount of time that was entirely up to the EPA.  Otherwise, the directive was final, citing the Clean Water Act of 1948 (revised and expanded in 1972).  If they did not begin to comply with the directive immediately, they faced fines of $30,000 a day.  Once the Sacketts complained that there was no reasonable way to challenge the order, the EPA increased the fines to $37,500 a day.  Throughout the process, the EPA has never provided a justification for their ruling that the lot, surrounded by homes in a subdivision with established sewer lines (in fact, several homes stood between the Sackett lot and the lake), is now considered part of a wetlands whereas the rest of the subdivision is not.  The EPA has contended that it does not have to.

The Sacketts have been fighting what they describe as this ‘David vs Goliath’ battle ever since, despite threats that the EPA will raise the fines to $75,000 a day after issuance of the compliance order.  They have garnered support for their cause through such people as Representative Raul Labrador (R-Idaho), Senator Mike Crapo (R-Idaho), Senator Jim Risch (R-Idaho), Senator Rand Paul (R-Kentucky), and Governor Sean Parnell (R-Alaska), as well as the US Chamber of Commerce, the National Association of Manufacturers, The National Association of Home Builders, and General Electric Company.

The EPA declared that the Sacketts could not obtain relief through the local courts.  An appeal to the District Court resulted in a decision in favor of the EPA, and the Ninth Circuit Court agreed.  (Of course: the Ninth Circuit, derisively known as the Ninth Circus, is famous for flagrantly liberal opinions and it is the most frequently overturned in the country.)   The Sacketts then took their case to the Supreme Court, assisted by the Pacific Legal Foundation, in Sackett vs EPA, arguing that the EPA’s actions were arbitrary and capricious under the Administrative Procedure Act (APA) of 1946, which provides for judicial review of “final agency action for which there is no other adequate remedy in court”, and arguments were heard last 9 January.

In the Supreme Court ruling announced on Tuesday, as explained in the majority (unanimous) opinion of Justice Antonin Scalia, it stated that the Ninth Circuit was (again) “reversed and remanded” but did not rule on the merits of the dispute at hand, only whether the Sacketts had a right to judicial review. 

The Government warns that the EPA is less likely to use the [compliance] orders if they are subject to judicial review.  That may be true – but it will be true for all agency actions subjected to judicial review.  The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.  And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review – even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.
Justice Samuel Alito also concurred in an opinion that was direct and unmistakable:
The position taken in this case by the Federal Govern­ment – a position that the Court now squarely rejects – would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.
The reach of the Clean Water Act is notoriously unclear.  Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Govern­ment, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.  The EPA may issue a compliance order demanding that the own­ers cease construction, engage in expensive remedial measures, and abandon any use of the property.  If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order).  And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad.  Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue.  By that time, the potential fines may easily have reached the millions.  In a nation that values due process, not to men­tion private property, such treatment is unthinkable. . . .
[T]he combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of viola­tions alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.
Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act. . . . For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase.  Instead, the agency has relied on informal guidance.  But far from providing clarity and predictabil­ity, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concern­ing wetlands can only be made on a case-by-case basis by EPA field staff. . . .
Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.
One can but hope that eventually this redress through the APA can be applied to cases involving the infamous Kelo vs City of New London (2005), which allows local governments and municipalities to seize land in order for developers to build properties that would provide a more remunerative tax income.

As to the wetlands issue, there are plenty of examples in this and other environmental cases where some ‘expert’ can simply decree, with no evidence whatsoever, that a property is a wetland.  In a town close by to me, a property that had previously been a sports field for the local small high school was bought for the purpose of building a church and attached school.  When the church school sought to modestly expand its infrastructure, it was told that since a drainage ditch had been dug along one side of the property, some distance from the proposed new construction, it was nevertheless now a wetlands and construction was forbidden.

One of the best examples was from the late Tony Snow, who wrote a touching obituary in 2001for friend and colleague Ken Rich, an editorial writer for the Washington Times:

Once, when I was his editor at The Washington Times, he and I were talking about the Kafkaesque nature of wetlands regulations.  In a fit of inspiration, I challenged him to find a wetland (as defined by federal rules) that had a cactus on it.  Weeks later, long after I had forgotten the conversation, he rushed into my office, shouting, "I found it! I found it!"  "Found what?"  "The cactus! The wetland cactus!"  He had a picture.  He had checked and double-checked to ensure the photo was legit.  And soon after, we ran an editorial, picture and all, about the desert that was also a wetland.
While the original issue is still in contention, stalling for years the desire of the Sacketts to build a home on their land, we can at least have some reprieve from a government diktat with no recourse but to knuckle under.  There are far more examples of the government ‘allowing’ the purchase of property but then declaring that it cannot be used for the purpose for which it was intended, a de facto destruction of the property’s value while still assessing tax liability for the ownership of the land.

But perhaps we are slowly returning to the original idea of the “pursuit of Happiness”.

1 comment:

  1. The beauty of all of this government overreach, from the government's point of view, is that if anyone wins a judgement against them, taxpayers will foot the bill.
    Does anyone believe that this will be fixed through acts of voting?


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