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A Victory Against Obama’s Green Tyranny

Posted By Rich Trzupek On March 22, 2012 @ 12:35 am In Daily Mailer,FrontPage | 16 Comments

It took five years, but Mike and Chantell Sackett have finally won the right to have their day in court. In a unanimous decision, the Supreme Court sided with the Idaho couple in their battle with the EPA, saying that the Sacketts were entitled to due process under the Clean Water Act, no matter what the EPA might think.

The case, which became a national symbol of EPA-overreach, centered on the EPA’s claim that the small parcel of lakefront property upon which the Sacketts intended to build a vacation home would disturb a wetland. Under EPA rules, the couple could not commence construction until the agency and the Army Corps of Engineers either issued a wetlands permit or decided that a permit wasn’t needed.

The Sacketts disputed the claim that wetlands existed on their property at all and they did not believe that they should have to go through the long, expensive and arduous EPA permitting process. Instead, they wanted to take the EPA to court without awaiting a permitting decision. The EPA maintained that permit applicants must wait until the agency makes formal decisions on permit applications before anyone can resort to judicial action.

The EPA’s position is essentially that it should be allowed to evaluate all of the evidence and relevant data before anyone questions the agency’s preliminary judgment. On the other side, many permit applicants (like the Sacketts) complain that the process itself amounts to a penalty. By holding up permit decisions for a year or more and by often requiring applicants to develop heaps of expensive data, obtaining even a favorable decision can be enormously expensive. In his opinion, Justice Samuel Alito summed up the frustration that many property owners feel when dealing with wetlands regulation:

“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,” Alito wrote.

Regulated wetlands are characterized not just by the wetness, but by the type of soil and the sorts of plants growing in the soil. In addition, the wetland must be connected to “waters of the United States” (navigable waterways) in order to be a “jurisdictional wetland” (one over which the EPA and Army Corps have regulatory authority). Using this criteria, overly-conservative and often inexperienced EPA employees sometimes making shocking decisions about qualifies as a jurisdictional wetland.

A sleepy fen, hosting a diverse mix of unusual flora and fauna that is located next to a major river clearly qualifies as a jurisdictional wetland. That’s the kind of ecosystem that the wetlands program was designed to protect. On the other hand, a few cat-tails growing in a pair of tire ruts that lead to a drainage ditch that empties into a creek that feeds a small river that eventually leads to a navigable waterway isn’t a wetland in any ecological sense, except in the view of overly zealous EPA personnel.

Though this decision provides some relief, there’s still a long way to go to restore some kind of equity between the rights of property owners and legitimate environmental protections. Doing so will require Congress to restore some balance, something that it has been notoriously reluctant to do whenever the green lobby gets involved. Alito took a well-deserved (in the author’s opinion) backhand slap at Congress in his opinion.

“The court’s decision provides a modest measure of relief,” he added. “But 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. 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.”

Yet, even if Congress dares to mildly offend environmentalists by restoring some sense of reason to the Clean Water Act, there would still be much work to be done in other areas if the EPA’s tyrannical authority is to be taken down a peg or two. The particular wording of the Clean Water Act allowed the court to rule such that future petitioners in wetlands cases can appeal to the judicial systems for access to due process. This is not so in the case of other environmental statutes. For example, the Supreme Court previously ruled in Employers Insurance of Wausau v. United States that access to judicial due process was not required under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) until the EPA completed its review. Timely access to due process is therefore a matter of the underlying statute in other words, not a universal right.

Thus, the Sackett case is a relatively small skirmish in the larger war to roll-back EPA’s vast authority.  There are more battles ahead and – sadly – most of them involve Senators and Representatives that are ill-equipped to understand the complex issues at hand and unwilling to offend environmental activists when they do.

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