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.
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”.
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.
ReplyDeleteDoes anyone believe that this will be fixed through acts of voting?