EPA regulatory over reach is slapped down – again! – April 2012
By now some of you may have heard about the U.S. Supreme Court’s March 21 ruling in Sackett v. Environmental Protection Agency in which the Court came down with a unanimous decision against the EPA.
For those who haven’t followed this case, it revolves around about two-thirds of an acre of land purchased by Mike Sackett and his wife Chantell near the shore of Priest Lake in Idaho in 2005. The land, which sat among other parcels of developed land, was determined by EPA to be a wetland after the Sacketts had already obtained a county permit and had hauled gravel onto the property.
EPA told the Sacketts they were filling a wetland in violation of the Clean Water Act and that they were to restore the property to its natural state or face fines up to $37,500 per day. The Sacketts wanted to appeal the EPA’s wetlands determination, but the Agency told them they had no right to a “timely and meaningful” hearing in court to challenge the Agency’s decision. And that is what the argument was all about.
An online article on cnn.com points out comments from Justice Alito during the hearing pointed to the concern that a homeowner could face a fine of such magnitude and still be denied any possibility of a judicial review. Justice Alito said in a concurring opinion that the bureaucracy the Sacketts endured was “unthinkable.” He also said that “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.”
This comment should not only send a message to EPA, but should also encourage Congress to step in. Instead of trying to remove the term “navigable” from the Clean Water Act, as is being contemplated, Congress should instead rein in potential future interpretation of federal authority abuses by the Agency or the Army Corp of Engineers. Congress should do this by amending the law to limit the reach of these mega agencies so the federal authority is clear; not open for interpretation by the agencies.
We know from past law suits against EPA that they will not limit their own authority and even when the Courts limit their authority they dance around the meaning of the words in the decision in an effort to circumvent the decisions. A unanimous decision from the Supreme Court should give the legislative branch the courage to do what it needs to do.
By Ken Hamilton, Wyoming Farm Bureau Federation Executive Vice President