Wednesday - March 21, 2012

A Supreme Bitchslap for the EPA

The Supreme Court handed down a major win for both property rights and due process rights today in the case of Sackett v. Environmental Protection Agency. At issue was the EPA’s use of so-called administrative compliance orders, which are government commands that allowed the agency to regulate the use of private property without also subjecting its actions to judicial review. In a 9-0 ruling, with the majority opinion written by Justice Antonin Scalia and separate concurring opinions filed by Justice Ruth Bader Ginsburg and Justice Samuel Alito, the Supreme Court declared that these EPA actions must be subject to judicial review.

Four years ago, Mike and Chantell Sackett bought property to build a home near a lake in Bonner County, Idaho. After obtaining local permits the Sacketts began work, pouring in some land fill. But their work came to a screeching halt when they were visited by officials from the Environmental Protection Agency. The couple was slapped with a compliance order asserting that the land is subject to the Clean Water Act and that they had illegally filled protected wetlands. They were told to stop filling in the lot, and to restore it to its pre-construction condition or face thousands of dollars in potential liability.

The Sacketts sought to challenge the EPA’s finding in court, but were told that that they needed to go through a permitting process first, and only after the EPA moved to enforce the order could they seek judicial review.

Today, a unanimous Supreme Court reversed a lower court decision and found that the Sacketts may bring a civil action under the Administrative Procedure Act, which provides for judicial review of “final agency action for which there is no other adequate remedy in court.”

Justice Alito, concurring:

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.

Volokh Conspiracy: “He urges Congress to clarify the scope of the CWA so that property owners will at least have a clearer indication of the scope of EPA authority over their land. Despite these limitations, the decision is a significant victory for property rights, and a rare case of unanimity on an important property rights issue.”

Decision here

It’s just as upsetting to me that the government would allows such an Act to be written in the first place as it is that they would, showing an utter lack of either common sense or common decency, take the Act all the way to the Supreme Court TO GET THEIR WAY. This is NOT what the federal government of the US of A is supposed to be like. I call for a general flogging of the case’s lawyers, the dingbats at EPA who went on an uppity hissy fit forcing their crap down citizen’s throats, and a double lashing for the rat bastards in the Legislature who authored this crap. Writing and enforcing law should not be “We’ll do whatever we want, and we’ll get away with it until the Supremes shoot it down, in half a dozen years or so, maybe.” Tar, feathers, horsewhip; some user creativity required. The next bunch gets the tree and the rope.

Perhaps I am remembering the details wrong, but I think the Sackett case was one where the EPA forced them to quit building because they had a “wetland” on their property, which was caused by a drainage culvert being jammed up? And then when they cleaned out the culvert and all the water drained away, and then they put in some fill dirt to level the ground off, and the EPA condemned them for destroying a “wetland”. Asshats. But I may be thinking of some other case, and some other outrageous action by the EPA. Lord knows they’ve got plenty of that to go around.

The Clean Water Act prohibits “the discharge of any pollutant by anyperson,” 33 U. S. C. §1311, without a permit, into “navigable waters,”§1344. Upon determining that a violation has occurred, the Environmental Protection Agency (EPA) may either issue a compliance order or initiate a civil enforcement action. §1319(a)(3). The resulting civil penalty may not “exceed [$37,500] per day for each violation.” §1319(d). The Government contends that the amount doubles to $75,000 when the EPA prevails against a person who has been issued a compliance order but has failed to comply. The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act.

The Ninth Circuit affirmed, concluding that the Clean Water Act precluded preenforcement judicial review of compliance orders and that such preclusion did not violate due process.

Ok, rope and tree for that bunch. Extra high and springy branches, so they dance better for our enjoyment. It’s their DAMN JOB to know better. “precluded preenforcement judicial review” means “do as the government says, right now, or get fined. You DO NOT have a right to a hearing.” and that this DID NOT violate due process (which means “you get a hearing").  If it weren’t a “green” issue, the loonies on the left would be screaming “NAZIS!!!!111!!” and they’d be right for once.

Justice Scalia does a big old eyeroll on his keyboard at the audacity of the EPA’s actions here in the first place: the Wetlands Act is limited to “navigable waterways” (although it doesn’t say navigable by what - perhaps a duck, or a miniature canoe?) and the adjacent wetlands that feed them directly. The Sackett’s gigantic 2/3 of an acre is several pieces of property away from Priest Lake in Idaho, and those properties already have houses on them. So step off, eh?

However, this is a limited decision. All that SCOTUS ruled on is that the Sackett’s do have the right to a hearing. They did not rule that the EPA is completely full of shit in this case, nor that it is run by uppity enviro-nazi bastards with powers unchecked, nor that their Acts and Rules are tyrannical. But I’m pretty sure Scalia knows it. Today at least, they blunted one of it’s fangs. Slightly.

Oh, how I long for the day when SCOTUS will grow a big hair pair and render decisions like “Go piss up a rope. PS, we’ve decided that your entire agency is unconstitutional, so you’re all fired and your rules are completely void. Have a nice day. The end.” All the more reason to get any flavor of Conservative into the White House, because some of those Black Robes are really getting ready for the big forever dirt nap.

Posted by Drew458     on 03/21/2012 at 03:56 PM   
Filed Under: • Environment • Government • Judges-Courts-Lawyers • Miscellaneous •  
• Comments (1) • Trackbacks(0)  Permalink •  

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