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  • Sackett v. EPA: Supreme Court Takes Up Property Rights Case

    Today the Supreme Court will hear oral argument in Sackett v. EPA, one of the most important property rights cases to reach the Court in recent history.  The case involves a complicated statutory scheme created by the Clean Water Act (CWA), which (as relevant here) is enforced by the EPA.

    In brief, the CWA seeks to protect the “navigable waters of the United States” against pollution.  What makes this case interesting and entertaining (at least for observers) is that the EPA has interpreted the term “navigable waters” to include in some cases (quite paradoxically) “land,” called a “wetland.”  The definition of a “wetland” is a matter of great complexity, one that even expert geologists and hydrologists can find daunting to apply consistently (let alone with unanimity), but does require at least some connection with water, however brief and infrequent.  The EPA can enforce the CWA by issuing an order to an alleged offender to cease polluting a wetland and to remedy any violation, or by bringing a civil lawsuit against the alleged offender for the same relief.   The CWA authorizes a $37,500 per day fine for violating the CWA by polluting a wetland without a permit, a fine that can be doubled if a court finds that the alleged offender also violated an EPA order to halt the pollution.

    Nearly five years ago, the Sacketts sought to build a home on an undeveloped lot in a subdivision with houses on almost every other lot surrounding their property.  The EPA issued them an order stating that their property was a wetland and directing them both to cease further construction and to remedy the harm already done.  The Sacketts disagree with the EPA and ever since have sought to have a federal court resolve this dispute.  So far, they have failed.  Now they have a shot at persuading the Supreme Court that a federal district court should referee this dispute.  The Sackett case involves the question whether a property owner – here, the Sacketts – can obtain judicial review of an EPA wetlands order even though the EPA itself has not brought its own lawsuit.

    Philosophers and linguistic scholars probably could write Ph.D. dissertations on the meaning of the statute and EPA’s regulations ( e.g. – “The Hermeneutics of the Clean Water Act”), and on the metaphysical concept of how “water” actually can include something that, at least in part (and sometimes that part can be 99%) is “land” (e.g. – “The Greeks Were Wrong – It is Just Air, Fire, and Water, Not Earth”).  The Sacketts, the Department of Justice and EPA, and a variety of amici already have filled a good-sized briefcase with briefs arguing about the proper meaning of the various soundly-based or thoughtlessly-drafted, neatly intersecting or hopelessly conflicting, eminently sensible or mind-numbingly irrational (all depending on your point of view), provisions of the CWA.  But what is worth considering for the average person (read: someone whose mind has not been polluted by legal training) is this:  How far we have come from the actual problem that Congress sought to remedy in this law?  And how did we wind up in this predicament?

    Congress enacted the CWA to deal with factories using pipes to dump staggering amounts of potentially-hazardous pollutants into the nation’s rivers, threatening the quality of the nation’s riverways and drinking water, and the lives of its people.  Congress could have dealt with this problem by vesting in the federal courts the power to devise a form of federal common law governing interstate pollution of the nation’s waters, a common law that would be used in tort actions resembling well-known products liability actions.  Instead, Congress dealt with this problem by enacting an admittedly complicated statutory scheme that empowered a federal agency — the EPA — to issue regulations to control such practices for the betterment of the public and to see to the enforcement of such regulations.  Each approach has advantages and disadvantages, and reasonable people can differ over how best to resolve this problem.

    What reasonable people cannot differ over is this:  It impossible to believe that any Member of Congress could have imagined that the CWA would apply to a case like this one.  The CWA deals with “navigable waters”; this case deals with “wetlands,” which, although not always “wet,” always are “land.”  The Sacketts are not Fortune 500 companies running factories that daily pour out thousands of gallons of RBS (the acronym for what in the trade is known as Really Bad S#*t) into a river used downstream for drinking water; the Sacketts are private parties who want to build a home on their property in a partially completed subdivision.  Yet, this is where the current state of environmental law leaves us. Regardless of the outcome of this case, we ought seriously to consider thinking twice before passing another complex federal law that, while noble in its intent, leaves private citizens facing a crushing burden of potential financial liability merely for trying to stand their ground before the federal government.  Private citizens should not be forced into bankruptcy as the penalty for pursuing what has been called the “American dream.”

    The Sackett case resembles a game of dominoes – or perhaps the childhood game of “telephone” – because where we are today in no way resembles where we started. Yet, I doubt that anyone who ever played either game stood a chance of being hammered with a penalty of $75,000 per day, over what now is nearly five years worth of days, just for losing.  The Sacketts do, and that is a shame in a society that believes in law and justice.

    Posted in Legal [slideshow_deploy]

    19 Responses to Sackett v. EPA: Supreme Court Takes Up Property Rights Case

    1. West Texan says:

      Unless interstate boundaries have been crossed, why did the EPA get involved? It's high time SCOTUS upholds states' rights to manage their own domestic concerns. The federal government needs to stay out of state and local business. Our country desperately needs to return to federalism the way it was designed and intended. Where governmental power is inversely proportional incrementally to that of the people.

      • West Texan says:

        Clarification on power. The most power is found in the natural rights of the people, their local communities, county governments and then states. The federal government was to have minimal power limited to maintenance of a secure environment (so that states and their respective residents may prosper), upholding individual freedom, and promoting fair interstate and foreign commerce .

    2. A fitting example of goverment bureaucracy run amok. EPA might be one of those agencies that could stand some scale down to fit in a 10 x 10 office somewhere….nahhh, that's too much room.

    3. Jim Albertz says:

      If a judge instead of an environmental engineer, I would rule in favor of the Sacketts.

    4. Woody Pfister says:

      Excellent description of the Clean Water Act "the proper meaning of the various soundly-based or thoughtlessly-drafted, neatly intersecting or hopelessly conflicting, eminently sensible or mind-numbingly irrational (all depending on your point of view), provisions of the CWA."____It really is RBS.

    5. Joe Gause says:

      This is another example of Congress allowing a federal agency to go berserk. It doesn't have to be, if the president's environmental priorities were not so skewed. The EPA has to be reined in, and that can only happen if we elect a Republican president this fall. But for now, for the Sacketts sake, I really hope our Supreme Court justices can lay out a dollop of common sense about what constitutes a wetland. In addition to ruling against the EPA, they should go further and slap a heavy fine on the current head of the EPA.

      • banderson says:

        You state "The EPA has to be reined in, and that can only happen if we elect a Republican president this fall." This action has been going on for over 5 years, begun during the GWB administation.

        • guthriej says:

          The EPA began under Nixon, purportedly a Republican, in 1972 and has been wreaking havoc ever since.

      • I blame Bush, as this action started in 2005 on his watch, with *his* EPA Administrator, Michael O. Leavitt. Granted, Øbama could have halted it, but this travesty of a case proceeded for OVER THREE YEARS on the Bush 43 watch.

    6. Buck says:

      This is just another case of terrible government overeach. The one thing I agree with Ron Paul on is, the EPA should be abolished. When are the people of this country going to stand up and say enough is enough?

    7. and2therepublic says:

      "Natural rights [are] the objects for the protection of which society is formed and municipal laws established."

      Thomas Jefferson – letter to James Monroe – 1791.

      If memory serves me correctly, property is a natural right, as is liberty. And on the subject of liberty he wrote:

      "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."

      I am not familiar with all the evidence in this case, but it appears that the Sacketts are within the limits drawn around them by the equal rights of all others.

    8. theBuckWheat says:

      An associate bought a house where the subdivision storm runoff ran through his back yard close to the foundation. When he sought to mediate the erosion, he found that the Army Corps of Engineers claimed jurisdiction. When he talked with them about mitigation they gave him a form where he could "apply" for their approval. However, they also told him that anything he did must be supported by a study from a qualified engineer and those studies start at $10,000. They also told him that they routinely deny such proposals.

      Pure tyranny. A man's land, owned free and clear is not his own even in the absence of any provable harm to others.

    9. Pam says:

      I urge all of you to look into the Miami Land Grab. Same thing hapening to many property owners who have run out of money to fight gov. Many have already lost their biz & homes. Many were farmers-say goodbye to local food supplies as they turn land into weeded lots. Property that was agricultural for decades. Now, because they say the topography changes and each property decided on case by case basis, they are wetlands. As stated in article, wetlands declaration very fuzzy—can be twisted & turned to
      fit their deifinition. No deed or title stated anything about these properties being wetlands-determined after they bought & tried to use their own properties- Miami Dade County Commissioners + Mayor have turned deaf ears & blind eye on the suffering of these people. They are collateral damage in their upsidedown world of weeds before people.

      • Kristin says:

        The everglades are being destroyed by fertilizers. If the farmers would have done a better job of controlling run off maybe this wouldn't be an issue. In general most of these comments are dividing the right to do business on your own land without backlash from the government. I hate to tell you this but if you diminish our water supplies we are all screwed. I would urge you to take your "libertarian, republican or capitalist" filters off and look at the facts. If you add to run off, sewer systems overflow into drinking water. Use your heads.

    10. jon says:

      1. was any other property in the subdivision under the same 'wetlands' protection at the time the Sacketts began their construction?
      2. did the Sacketts have knowledge of the 'wetlands' designation prior to construction?
      3. how did the EPA become involved in this in the first place?

    11. Katherine says:

      My family is going through this same ordeal. My mother built a campground on land that has been in the family for years. The land runs parallel to a creek in our community which was not disturbed. The EPA arrived on site and ordered that she cease construction because she was disturbing wetlands. Studies have been performed many times and the only group that has results indicating there are any wetlands on the property is the EPA. Our experience mirrors exactly what is happening to the Sackett family. She has been instructed to plead for mercy because she can't win. The EPA's mercy? A felony conviction, 4 months in prison, hundreds of thousands of dollars in fines, and handing over all of her property including her home. We are all in utter disbelief that this can be happening and there doesn't seem to be any way to stop it.

      • Bryan says:

        Call Obama, if he can call a woman on the phone because somebody called her a name he sure as hell can talk to you!! Vote vote vote we need to take this country back! I just saw the other case on TV ! CAll the tv station get the number to this show.DO it first thing Monday morning!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! THink this deserve a BLOG post http://bryansaunders1.blogspot.com

    12. Richard Callicott says:

      I agree the EPA has overstepped its authority in this case and with these troubled federal deficits, perhaps the EPA should have its budget cut since it seems to be overly engaged. I also agree with the premises of CWA in general as businesses can't be trusted not to pollute with RBS emissions; causing irreparable harm to US citizens further downstream. My God, the not too distant past is replete with cases of fact that industry and governments ran amok and almost destroyed our natural waterways. All players within an industry must be made to play by essentially the same rules environmentally to ensure a fair profit is achieved without killing a thousand citizens somewhere down river to gain an unfair advantage in production costs.

    13. John D says:

      The Clean Water Act is an infringement on on profits and corporations should be free to dispose of unused production materials as they see fit. There is tort law at the state level to handle incidental damages that may occur. The overuse of the interstate commerce clause for justifying every federal action must come to a stop, or the over-regulation will only continue.

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