Thursday, March 22, 2012

A Big Step for Freedom and the Constitution

Yesterday, the United States Supreme Court issued a significant and unanimous opinion reigning in the EPA. The case was Sackett v. Environmental Protection Agency, No. 10-1062.

In this case, Mr. and Mrs. Michael Sackett, of Priest Lake, Idaho, fell victim to the EPA's abusive and overbearing practices. The Sackett family sought to build a house on its half-acre of land, yet after construction broke ground, the EPA interfered, claiming the family violated the Clean Water Act by placing fill materials into “wetlands.” Their property was designated as a wetland, yet their neighbors have built houses on either side of their lot and their lot already has established sewage lines. Their lot does not harbor a lake, pond or stream, yet the EPA is requiring them to obtain a building permit that would cost more than the value of their land. The Sacketts proceeded by filing suit, but the request was dismissed by a federal judge.

Basically, the couple complained there was no reasonable way to challenge the order and did not know why the EPA concluded there are wetlands on their lot, which is surrounded by a residential neighborhood with sewer lines and homes.

When the Sacketts sought to challenge the compliance order, they were told by EPA officials and later by a federal judge and the U.S. 9th Circuit Court of Appeals that they had no right to a hearing. Instead, they were told to comply with the order first and then seek a permit to resume building. They were not entitled to a hearing until the agency had imposed a fine on them and decided to allow review. The EPA claimed to the Supreme Court that they acted under the Clean Water Act, and insisted that the couple could not sue to challenge the order and had to wait for court review at the option of EPA.

Imagine that. The EPA decided they could force their will upon American citizens without a hearing or due process of law!!

The United States Supreme Court thankfully overruled the Circuit Court. Writing for the unanimous Court, Justice Scalia opined that the EPA cannot impose fines that could be as much as $75,000 a day without giving property owners the ability to challenge its actions in a court of law.

In a concurring opinion, Justice Alito offered a thorough and compelling statement:

"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."

This is a big victory for freedom. The EPA needs to be reigned in and freedom must be protected. However, though the decision was unanimous, there is caused for concern. Justice Ginsberg issued a concurrence. She wrote:

"The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion."

This is disturbing. Justice Ginsberg agrees that the Sacketts may litigate the question of jurisdiction. She does not appear to agree, however, that they can legally challenge the authority of the EPA in court. On that issue, Justice Ginsberg seems to opine that the Sacketts would have to wait for court review at the option of the EPA. That a Justice of the Supreme Court would so rule should be disturbing to all lovers of freedom.


Anonymous said... didn't like my anti-fracking comment, did you? Can your neighbor do what s/he wants with his property even though it could negatively impact your peace and quiet and property values? There are limits freedom - freedom of speech doesn't mean I can yell "fire" in a crowded theatre. But to seriously accept the stance that anyone should be able to do whatever they want on their own property is ludicrous. As former aldermen (both you and Andi), you should be among the first to understand this concept. Can your neighbor have a horse or pigs or chickens? No. Why is it against the law? Because it's a nuisance to neighbors. Can I mow my lawn at 6 a.m.? No - you can't mow until 8, but you can use a snowblower at 6. Why? To consider your neighbors. That's why we have building and zoning codes in the city - so that we can all enjoy our property without concern that our idiot neighbors will do whatever they want with nary a care or concern about anyone else.

Richard T. Cahill Jr. said...


There is a huge difference between a law prohibiting mowing your lawn at 6am and allowing the EPA to run wild and deny people due process.

The fracking debate is one that is being contested without one precious item: facts.

If it can be demonstrated that fracking or some other form of drilling for shale oil can be accomplished without substantial damage to the surrounding environment, then it should be allowed. Unfortunately, political motivations and outright lies on this subject have clouded the issue. A proper review needs to be done of the process.

Regardless of that issue, the EPA should not be permitted to deny people due process of law.