Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands… 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… If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day… 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.
Sound like the words of a paranoid libertarian blogger? It was actually Supreme Court Justice Samuel Alito rebuking the Environmental Protection Agency for an excessive attack on American citizens. Yes, we do still have some checks and balances in the federal government – barely.
You can find more details about the case here, but the gist of it is that an Idaho couple started building a house near a lake when the EPA suddenly told them their property was classified as “wetlands” even though there was no water on it. This meant that they had to stop building and restore the land to its original condition or pay fines of tens of thousands of dollars per day. Furthermore, they didn’t even have the right to take the EPA to court to dispute the wetlands classification. (The only reason that shouldn’t bother you is if you believe the government never makes mistakes.)
On Wednesday, in Sackett vs. EPA, the Supreme Court ruled 9-0 that “the property owners are entitled to judicial review of their case.” Based on what I’ve read from places like Volokh and the Wall Street Journal, my understanding is that the Supreme Court did not limit the EPA’s ability to classify property as wetlands. They didn’t even limit the EPA’s ridiculous fines for disobeying their classifications.
But they did say that if the EPA does all those things, they don’t also have the right to deny you from suing them about it. That was just a little too much (the Supreme Court wants Congress to clarify the “vague” Clean Water Act that the EPA is using to justify its actions). This may be a small victory, but I’m going to celebrate it for all it’s worth.
I love it when the Supreme Court goes unanimous on an issue. When they go 5-4, especially on a big issue, I start to get philosophically queasy about the way our government works. It seems like any one of those 5 justices, in that moment, have more power even than the President, because if any of them had changed their minds, something which could affect the entire United States could have gone completely the other way. So much can hang on so little.
I hope Obama’s health care law doesn’t end up like that; on Monday the Supreme Court starts hearing arguments about whether or not the federal government can force Americans to buy a product from a private business – even if it’s for a good cause. A 5-4 ruling is like: Oh, really important complicated freedoms at stake? Let’s flip a coin! A 9-0 ruling is like: BOOM! Stop terrorizing American citizens, EPA! Cut that out!
I also want to stress the blame both major parties have in the EPA’s excess. The EPA’s compliance order to Mike and Chantell Sackett came down in 2007, a.k.a. when Republican George W. Bush was President. The WSJ claims that Obama’s EPA has issued more regulations (this?) expanding its power under the Clean Water Act. Both parties have been expanding the reach of the executive branch for a long time. Finally, at least in this minor case, the Supreme Court said NO!
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