American Elephants

The Supreme Court Unanimously Scolds the EPA by The Elephant's Child

Here is the basic case. In 2005, Mike and Chantell Sackett bought a small piece of land in Priest Lake,  Idaho — up in the Idaho panhandle.  Running their own small business, living in a rented home, building their dream house with a view of the lake launched this unsuspecting couple on a nightmare journey that led them to the United States Supreme Court, to finally meet their destiny on Wednesday.  The video, below will give you a sense of their story.

Here is the piece I wrote last October about the case, which includes the Pacific Legal Foundation brief and their pathway through the courts.

I have no brief for the EPA, which I consider an out-of-control agency that is causing far more trouble for America than it is cumulatively worth. Here in the Seattle area, under current EPA thinking, almost anyone’s home could be considered a wetland— at least a good part of the year.  It does rain a lot.

Wednesday, a Unanimous Supreme Court ruled in favor of the property owners in Sackett v. EPA.  The opinions in the case (an opinion for the court and two concurring opinions by Justices Ginsburg and Alito) are available here. Justice Alito’s concurring opinion offers a very clear description of what was at stake;

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.

The court reached its decision on statutory grounds, ruling that the property owners are entitled to judicial review of their case under the Administrative Procedure Act. It did not, therefore get into the issue of whether such review is also required by the Due Process Clause of the Fifth Amendment, which states that the government may not deprive individuals of life, liberty, or property without due process of law.

Justice Alito went on to explain that “the 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.” The justice also urged Congress to clarify the scope of the Clean Water Act, and the draconian penalties imposed for the sort of violations alleged in this case.Scroll down to the end of the decision to see what Justice Alito had to say to Congress and the EPA.

This is a strange, and seemingly unnecessary, case caused by sloppy legislation that provided that the Clean Water Act covers “the waters of the United States.” Ambiguous, and Justice Alito suggests that Congress and the EPA both need to clean up their overreach and get precise. “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.”

EPA Using Clean Water Act to Seize More Power by The Elephant's Child

Congress has increasingly become sloppy in creating legislation. They have often left the finer details for the bureaucrats in America’s vast regulatory enterprise to devise. Laws that do not carefully spell out the limits of legislation come back to haunt the country when agencies use their very vagueness to grasp for more regulatory power.

The Clean Air Act of 1970 and the 1972 Clean Water Act are two of the prime examples. The Environmental Protection Agency, staffed with green activists, is unrestrained in its grasp for ever more control over America and Americans.

Back in the early 70s, the smog in Los Angeles lay like a thick yellow-brown blanket smothering the fabled orange groves of the Golden State. Sewer outfalls emptied into rivers and lakes, and the Cuyahoga River caught fire. Americans wanted clean air and clean water. The efforts to clean up produced catalytic converters, sewage treatment plants and air-quality monitoring, and the efforts worked.  Both our air and our water are remarkably clean.

The EPA is attempting to unnecessarily regulate ever-finer particulates in the air, and even dust on the farm.  Now they are going after the water.

The 1972 Clean Water Act was originally intended to protect the “navigable waters of the United States.”  “Navigable” means that boats can go there. It was broadly interpreted to mean any pool of water in America capable of supporting a toy boat. The act’s scope was expanded to the point that water remaining after a rainstorm became a “wetland” requiring environmental protection.

In 2006, a U.S. Supreme Court case from Michigan produced five different opinions and no clear definition of which waterways were covered and which were not.  This left the government with a clean slate to write its own interpretation — everything they wanted to regulate. And their expansive view is breathtaking in its grasping nature.

The EPA recently revoked the coal mining permit for Arch Coal’s Spruce Mine No. 1 in Logan County, W. Va. The permit was issued four years ago, and Arch Coal has, since then followed every word of the rules it was told to operate under. Arch Coal provides 16% of America’s supply, and they have invested $250 million in the mountain-top mining operation which when fully operational would have employed 215 miners and 300 support jobs.

The EPA said it was operating under the authority of the Clean Water Act. They said the mine employed “destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which the depend.  The EPA is currently suspending 79 such surface mining permits in West Virginia, Kentucky, Ohio and Tennessee.  It says these permits could violate the Clean Water Act and warrant “enhanced” review.

EPA Administrator Lisa Jackson says she’s not against coal mining, but wants to see it “done in a way that minimizes impact to water quality.” Sure she does. Her boss said, even back when he was campaigning, that he intended to bankrupt the coal industry.

This isn’t about clean water. Cap-and-trade was not about climate change. Regulation of fine particulates is not about clean air. This is about increasing government power over every aspect of our lives.

Where does it stop?  They want ever more control. Why?  Why are they trying to drive up the price of gas?  Why are they trying to shut down every source of energy in favor of the ones that simply do not work?  Why are they trying to confiscate public lands?  Why are they so invested in control of our personal lives?  Why do they want control of our ponds, ditches, rain puddles and water fixtures?  Waterfront property may become a liability instead of an enhancement.

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