Will the Supreme Court stop the EPA?

posted at 4:15 pm on December 17, 2011 by Ed Morrissey

Mike and Chantell Sackett thought that they had achieved the American dream of not just owning their own home, but building one themselves.  They bought a parcel of land zoned for residential construction in Idaho that was slightly larger than a half-acre and began construction on the house.  The EPA stopped them from proceeding by informing the Sacketts that their land was considered federally-protected wetlands, and that not only would they have to cease construction, they were required to return the land to the same condition as they had found it.  Each day that they failed to do so, the EPA could fine them $32,500.  The only way they could challenge this ruling is if the EPA sought judicial enforcement of the order, which the EPA is not inclined to do for obvious reasons and which would take years anyway.

Next month, Reason’s Damon Root reports, the Supreme Court will hear arguments in Sackett v EPA, and it has an opportunity to return private property rights to their proper standing (via our Townhall colleague Helen Whalen Cohen):

The Fifth Amendment to the U.S. Constitution declares that no person shall be “deprived of life, liberty, or property, without due process of law.” This means that if the government infringes on your rights, you are entitled to mount a timely and meaningful defense of those rights in court. It’s one of the cornerstones of our entire legal system, with roots dating back at least as far as the Magna Carta, which declared, “No free man…shall be stripped of his rights or possessions…except by the lawful judgment of his equals or by the law of the land.”

Unfortunately, the Environmental Protection Agency (EPA) prefers a less venerable form of justice, as the Supreme Court will hear next month during oral arguments in the case of Sackett v. Environmental Protection Agency. At issue is the EPA’s enforcement of the Clean Water Act through so-called administrative compliance orders, which are government commands that allow the agency to control the use of private property without the annoyance of having to subject its actions to judicial review. …

For its part, the EPA argues that old-fashioned judicial review would simply get in the way. As the agency states in the brief it submitted to the Supreme Court, “A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regulated parties, by discouraging interactive processes that can obviate the need for judicial action.”

Of course, the whole point of due process is that people sometimes do have “the need for judicial action” against overreaching government officials. Why should those people have to give up that right to the EPA? More to the point, why should the Supreme Court allow it to happen?

As the Institute for Justice observes in the friend of the court brief it filed on behalf of the Sacketts, “If other governmental agencies were to adopt an enforcement mechanism like that used by the Environmental Protection Agency in this case, the constitutional guarantee of due process under the law would be severely harmed and the ability to own and use private property would be subject to the unrestrained and unreviewed orders of government officials.” There’s a term for that sort of unchecked government power, and it’s not interactive processes.

There could be a Sixth Amendment argument for the Sacketts as well.  The Sixth Amendment protects the right of “a speedy trial” in relation to criminal prosecutions.  The EPA’s actions here are technically not criminal prosecutions, but they are punitive actions rather than civil torts.  Delaying judicial review capriciously in order to disadvantage citizens accused of breaking the law, especially for years, in order to force them into submission certainly flies in the face of the spirit of the Sixth Amendment.

House Energy and Commerce chair Fred Upton attacks the EPA in a National Review essay this week, and the regulatory adventurism of the Obama administration in general:

In the next few days, President Obama’s Environmental Protection Agency is expected to issue another final regulation directed at electricity utilities. This rule, known as the Utility MACT, will impose an estimated $11 billion each year in new costs on our economy. It will threaten electricity-generating capacity in many parts of the country. And it’s just the tip of the iceberg when it comes to this administration’s runaway rulemaking. …

The Obama administration and likeminded Democrats in Congress have consistently misread the problem and the solution. They missed the American people’s desire for balanced policy that protects jobs; they failed to see that reasonable regulatory solutions garnered broad support; and they underestimated the depth of our economic problems.

According to data available from the Office of Management and Budget, President Obama has issued 50 percent more “economically significant regulations” (those with an annual effect on the economy of $100 million or more) per year than President Clinton and 44 percent more than George W. Bush.

Unfortunately, when it comes to regulations, it’s not just that there are more of them: The Obama administration’s regulatory actions are also more expensive. The average annual cost of major regulations under the Bush administration was $4.9 billion. Under Obama, the average cost has ballooned to $12.5 billion — that’s a cost increase of more than 150 percent to American businesses and consumers.

The Supreme Court has an opportunity in this term to curb the runaway abuse of regulatory power by the Obama administration, and return control of federal policy to Congress and a rational process of rulemaking that instills the accountability and due process that will give regulation credibility.  Let’s hope they get this one right, and don’t pull another Kelo.


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