The Supreme Court agreed to hear the sadly representative case of an Idaho couple dragged through the ringer by our aggressive, money-hungry, bullying EPA. It’s essentially a due process case, intended to settle the narrow question of whether or not individuals should have immediate access to the judicial system when the EPA takes action against them. But there’s more here, because the saga of Mike and Chantell Sackett is a harrowing tale that illustrates just how out of control this agency is.
You can read all about the Sacketts’ fight at the Pacific Legal Foundation website. In brief, the story is this: Six years ago, the couple bought a 0.63 acre parcel alongside a lake, intending to build a house. They started construction, and – like any number of individuals (as opposed to developers) building homes – they didn’t do a formal wetlands delineation before starting to move earth and dump gravel. (A “wetlands delineation” is the investigative process by which experts decide whether there is a wetland on site on not.)
At this point, I need to veer off of the main story for a moment to describe what a wetland is as far as regulators are concerned. Not surprisingly, the regulatory definition of a wetland has little to do with the common sense definition.
First of all, a wetland need not actually be wet. It is rather primarily defined by hydrography (i.e. water flow patterns), soil classification and the type of vegetation present. In my career, I have seen it determined that a couple of tire ruts with a few cattails growing in them are “wetlands.”
For a wetland to be regulated, it must also be connected to “waters of the United States,” which are basically any navigable river, lake or other body of water. Thus, in my tire rut example, the ruts were determined to be part of waters of the United States because they drained into a ditch, which ran into a creek, which ran into a small river, which eventually drained into the Chicago Sanitary and Ship Canal, which drains into the Des Plaines River, which drains into the Illinois River, which is a navigable water way. So there you go.
When most people think of wetlands protection, they think of big swamps and fens teaming with aquatic birds and beavers engaged in wholly unregulated construction projects. That happens, but much more often wetland protection is about tire ruts, tiny pools or a smattering of cat tails on the edge of a pond. It’s regulation for regulation’s sake, in other words, for delving into such minutia does nothing to improve the world. The EPA, Army Corps of Engineers and Congress are all at fault here: Congress for granting the Agency and Corps such broad authority and the two regulatory bodies for wielding it so grandiosely.
Back to the Sacketts. The couple got sucked into this surreal world. The EPA ordered them to stop construction and to return the 0.63 acre site to its original condition. If they didn’t, the EPA said it could fine the couple up to $37,500 per day for non-compliance. In fact, the Agency can take such unjustifiably punitive action, for such is the power that Congress has surrendered to it. Unfortunately, it’s not at all unusual to see the EPA use its remarkable ability to levy ridiculous fines as a club in just this way.
Here we come to a rather interesting nuance of the underlying law. The EPA maintains that, under the Clean Water Act there can be no judicial appeal of its ruling that the Sacketts’ property contains a wetland until and unless the EPA actually takes action – in the form of a fine or permit denial, for example. So, simply by doing nothing, the EPA can effectively kill this (or any) project. If the couple defies the Agency’s cease and desist order, they know that they are potentially subject to huge fines. Once the penalty demand comes in they can appeal the EPA’s decision to a court, but there’s absolutely no guarantee that they would win. Thus, the Sacketts face the uncomfortable choice of building and playing Russian Roulette with their life savings, or not building and abandoning both their dream and their property.
This ban on pre-enforcement judicial review is a powerful tool that the EPA uses on a routine basis. It’s the regulatory equivalent of racketeering in a way. The Pacific Legal Foundation argues that people shouldn’t have to wait for the Agency to decide to act before acquiring some certainty. That doesn’t seem an unreasonable request, even if settling that question does not address the larger issue of overly restrictive wetlands determinations.
Predictably, environmental groups went into full Straw Man construction project mode to explain why bullying a couple trying to build their dream home is really a good thing. From a story in the Washington Post:
The danger of a Sackett victory, said Lawrence M. Levine, a senior lawyer at the Natural Resources Defense Council, is that it could allow major polluters to tie up the EPA in litigation.
“It’s really a war against federal regulation of any kind,” he added.
There’s simply no merit to either of Levine’s statements. None at all. It’s not surprising that Levine would think in terms of tying up the EPA in litigation, since that’s his organization’s modus operandi when they don’t get what they want, but suggesting that this will give major polluters (whoever they are supposed to be) a get-out-of-jail-free card is ludicrous. This is about restoring some sort of balance to a system that – thanks to the efforts of groups like NRDC – has been badly out of balance for quite some time.
Likewise, the silly argument that this is a war against all federal regulation of any kind ought to be beneath even so biased a critic as Levine. People understand that we need environmental protection and we need to look out for worker safety and we need to have speed limits and countless other measures designed to keep us safe and healthy. That said, it doesn’t follow that we should hand a blank check to every agency that’s entrusted with doing these things. Saying that you are for reasonable regulation, does not mean you are against regulation of any kind.
But then environmental groups like NRDC and the Sierra Club operate under the mindset that they should be able to sell any piece of ridiculous legislation and/or regulation to the American public by wrapping a green bow around it. Fortunately, the American people are starting to wise up. Is it too much to hope for that the Supremes do the same?
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