March 22, 2012

"The regulators lost to the regulated..."

... in the Supreme Court case, issued yesterday, Sackett v. Environmental Protection Agency:
[T]he Supreme Court’s unanimous opinion held that property owners and other regulated parties may challenge administrative compliance orders issued by the Environmental Protection Agency under the Clean Water Act. This is a small, yet significant, victory guaranteeing a modicum of procedural protection for those subject to regulation under the CWA.

16 comments:

Chase said...

O How we need this!

The EPA, thinking it has the unlimited power that Obama now wants Congress to have, has proven the old adage, "power corrupts".

If you are reading this and don't know what EPA and other Federal Agencies run amuck with way too much unconstitutional power to control the lives of Americans - any American, and yes, that includes you and your children - start here

edutcher said...

After Kelo, Lawrence, and a lot of other decisions that add up to lousy law, the Supremes finally get one right.

About damned time.

Ken said...

But will anyone at the EPA get fined, fired, or jailed?

Until these over reaching bureaucrats are held personally responsible for abuses, nothing will change.

EDH said...

Volokh had a nice quote from Alito that summed up the case.

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 Edge of Wetness"

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.

Unknown said...

Aghhh!!

[/Charlie Brown]

Everyone jumps to the 5th Amendment question and thinks that Kelo has been undone. This is a very narrow APA case that never once touched on Constitutional grounds.

Insufficiently Sensitive said...

It's time the Pacific Legal Foundation got some credit for taking the case, representing Sacketts, and convincing SCOTUS.

Now hoping that they'll get a chance to confront the CWA's lack of definition of 'wetland', so that property owners won't lie awake worrying that the wet rug in the back yard will cost them any future beneficial use of their property.

EPA and the Corps of Engineers have maneuvered that lack of definition of a wetland boundary into an immense power grab for themselves, and an immense injustice to property owners far from the 'navigable waters' that the CWA was meant to protect.

traditionalguy said...

The Constitution is a written covenant that recognizes un-alienable rights of individuals exist over their property.

To assure us we have private property we have written down laws used by lawyers and enforced by the courts of judges.

That the king owns it all and deigns to issue permits to his friends to use various parcels for various times is the other concept upon which Empires were built until circa 1400 when property ownership became freed from restraints of the kings. That older concept was called eminent domain or feudalism.

The Kelo case affirmed that older concept under Eminent Domain of the King laws, but changed it removong the public purpose boundary we had erected to protect us from its abuse.

But Kelo left in place the right of an owner to be paid the fair market value of the property taken from him.

The EPA is using the Clean Water Act as the the point of the spear for a restated old " King owns it all all of the time"doctrine.

The "CO2 is pollution hoax" is the other attempt to re-instate feudalism over the American Constitution's views of people's rights to own property.

In both attempts the payment of the FMV of the taking is also being revoked.

If air and water are not owned by the property owner, then what tyranny does own the earth?

That tyranny IS the Obama/Ayers disguised socialism in its bloody tooth and fang.

The use of a religious concept of "unclean air and unclean water as peoples sins against a nature god's purity" has paralyzed an otherwise smart people into bowing down before this socialist empire creation by the end run around the Constitutional covenant rights of people.

The SCOTUS is our last bastion. With the exception of the Tea Party revolt, Congress only wants a share of the blood money for selling us out.

Scott M said...

If air and water are not owned by the property owner, then what tyranny does own the earth?

The children. We've got to protect the air and the water for the CHILDREN. Hillary said so.

Carnifex said...

As much as I dislike Zero, even I can't blame him for that Kelo abortion. That one is fully on the SCOTUS, and to prove the power of their convictions, every Justice that agreed with that decision should have to give up their home to whomever wanted it. But tthey won't.

A far as this decision, It merely says the EPA must have some sort of an appeal process for its draconian decisions. It will play out something like this...

Hello Citizen. We at the EPA have noticed that you are trying to develop the lot located off the SW drainage ditch for Mudd Flatt. Since this is a "drainage" ditch, it is conceivable that water may, but in fact may not, occur in this so called ditch. It is also conceivable that a mother duck with her family of ducklings, all with broken wings, may, but in fact may not, be flying over head, and need to settle to rest their weary pinions. Since your development may, but fact may not, because ducks and geese inhabit any piece of ground they deem theirs as proven on the nightly news, and my frequent golf outings with Pres. Obama, we declare that you cease all development, restore the land to its original shape, and are to be fined 1 child for every day that you do not comply with our totally arbitrary ruling.

We at the EPA recognize that you might wish to appeal this totally arbitrary ruling we have included this helpful form for this process.

Helpful Form No. 8565153-BS1

I would like to appeal your ruling.
Mark y/n. Y__ N__

Your appeal is rejected.

Thank you for your time, and remember, we at the EPA are here to serve you, and the futures you's that may, but in fact may not, ever exist.

End Helpful Form No. 8565153-BS1

Ps. Would you like to donate some of your ill gotten lucre to re-elect Pres., and Dear Leader, Obama the 1st.

Please Mark y/y.
Y__ Y__

Rusty said...

This is a very narrow APA case that never once touched on Constitutional grounds.



How is the EPA constitutional?
Please.

Jim said...

A plain statement of the case, for the confused:

On the merits, the substantive question, the Sacketts owned a plot uphill from a pond or river and were building a house. EPA field agents declared their land a wetland (a declaration the Sacketts contest), and directed that they un-dig the foundation hole and do some other stuff or face fines of up to several tens of thousands per day. When they attempted to appeal administratively to the agency, the EPA declined to hear an appeal, stating the decision was final and no agency appeal or court appeal were allowed.

Got that? EPA asserted that they can direct you to do various things with your own land and fine you crushing amounts for non-compliance (generally a correct proposition under the Clean Water Act Section 404), and furthermore they assert you cannot legally contest their orders or their fines.

The Supreme Court didn't touch on the longstanding and controversial merits question ("what is a wetland under Section 404 anyhow, and is the Sackett's land a wetland?") but did hold that the homeowners have a right to go to court to contest the initial EPA's actions.

The ruling was 9-0 as to whether they had a right to a day in court to contest the agency's adverse actions.

The Drill SGT said...

Jim said...
A plain statement of the case, for the confused:

On the merits, the substantive question, the Sacketts owned a plot uphill from a pond or river and were building a house. EPA field agents declared their land a wetland (a declaration the Sacketts contest), and directed that they un-dig the foundation hole and do some other stuff or face fines of up to several tens of thousands per day.


Jim, onec amplification.

The lot was in a sub-division, zoned by the county as residential, with roads and sewers brought in by the developers. The Sackets had every expectation (provided by the county and the developer) that their land was NOT a wetland.

PS: Apparently the EPA had no issue with the houses built on the actual wetland (e.g. lakefront houses were there), but got a gnat up their ass for an inland lot.

TosaGuy said...

You're welcome.

damikesc said...

The Courts need to stop tossing out a lot of laws due to being needlessly vague. I never understood how laws that had penalties for undefined reasons could possibly pass muster in a legal challenge.

If you don't define, SPECIFICALLY, what a "wetland" is initially --- how can it be legal? Just allow some random putz in an agency with absolutely no accountability at all to just decide "Well, I think if it has moisture at all, it's a wetland"?

Heck, what would stop them from using the existence of dew to label ANY property in the country a wetland?

If I was President, I'd have them generate some way of listing the office of a major environmental group as a wetland.

damikesc said...

Courts need to start, not stop. Sheesh

The Drill SGT said...

damikesc said...

Scalia covered part of the history, about how navigatable rivers became marshes, became damp spots in the forest.

The particulars of this case flow from a dispute aboutthe scope of “the navigable waters” subject to this enforcement regime. Today we consider only whether the dispute may be brought to court by challenging the compliance order—we do not resolve the dispute on the merits. The reader will be curious, however, to know what all the fuss is about. In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), we upheld a regulation that construed “the navigable waters” to include “freshwater wetlands,” id., at 124, themselves not actually navigable, that were adjacent to navigable-in-fact waters