American Elephants

The EPA May Have Gone Too Far This Time! by The Elephant's Child

The out-of-control EPA may have gone a step too far. Unphased by slap-downs from the Supreme Court, the rogue agency continues their grab for power under the Clean Water Act and the Clean Air Act. Everybody wants clean air and clean water, the problems arise when it comes to defining “clean.”

The EPA wants all fine particles removed from the air — which is impossible. They have tried to regulate farm dust, and made outrageous claims their program is expected to save a specific large number of American children from contracting asthma. Unfortunately, the medical profession does not know the cause of asthma — but the EPA claims to.

When Congress passed laws allowing the EPA to protect clean air and clean water, they were unfortunately vague because they didn’t know what scientifically defined”clean” air. When it came to water, they gave the EPA some jurisdiction over the “navigable waters” of the country, which the EPA has assumed means any moving or still water anywhere.

Their latest gambit is to use the Clean Water Act (CWA) to control land alongside ditches, gullies, and temporary water sources caused by rain or snowmelt by claiming that they are part of navigable waterways. A spring leads to a trickle that enlarges to a creek that becomes a stream that  flows into a river and eventually you do get to a navigable waterway, except they are trying to trace every raindrop back to its source. Which is absurd. But such action would make it harder for private property owners to build in their own backyards, grow crops, raise livestock and conduct activities on their own land.

“Never in the history of the CWA has federal regulation defined ditches and other upland features as ‘waters of the United States,’” said Rep. John Mica (R-Fla.), chairman of the House Transportation and Infrastructure Committee, Rep. Nick Rahall (D-W.Va.), the ranking committee member, and Rep. Bob Gibbs (R-Ohio), chairman of the Subcommittee on Water Resources and Environment.

“This is without a doubt an expansion of federal jurisdiction,” the lawmakers said in a May 31 letter to House colleagues.

This unusual alliance of powerful House Republicans and Democrats to jointly sponsor legislation to overturn the new guidelines signals a willingness on Capitol Hill to rein in the rogue agency.

The Obama administration is doing everything in its power to increase costs and regulatory burdens for American businesses, farmers and individual property owners,” Mica said in a statement to Human Events. “This federal jurisdiction grab has been opposed by Congress for years, and now the administration and its agencies are ignoring law and rulemaking procedures in order to tighten their regulatory grip over every water body in the country.”

“But this administration needs to realize it is not above the law,” Mica said.

The measure in the House has 64 cosponsors and was passed in committee last week. A companion speech is being studied in the Senate and is cosponsored by 26 Republicans. Key Supreme Court decisions against the federal government in cases involving the Clean Water Act have prompted a new round of guidelines by the agencies involved to define what they want to consider waterways.

“President Obama’s EPA continues to act as if it is above the law. It is using this overreaching guidance to pre-empt state and local governments, farmers and ranchers, small business owners and homeowners from making local land and water use decisions,” Sen. John Barrasso (R-Wyo.) said in announcing their measure in March. “Our bill will stop this unprecedented Washington power grab and restore Americans’ property rights.”

“It’s time to get EPA lawyers out of Americans’ backyards,” Barrasso said.

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.”

%d bloggers like this: