Audio: Justice Alito oddly unimpressed with EPA procedures

posted at 12:45 pm on January 18, 2012 by Ed Morrissey

A month ago, I wrote about the Supreme Court’s decision to take a close look at the EPA and the lack of due process afforded to property owners who run afoul of arcane regulations, regarding wetlands in this specific case.  Sackett v EPA pits an Idaho couple who wanted to build their dream house on property they bought for that purpose, and which had been zoned and properly permitted for it as well — until the EPA declared it “wetlands” and insisted that the Sacketts had to dismantle their construction at their own expense.  Thanks to the convoluted rules of the EPA, the Sacketts couldn’t challenge the ruling in court unless the EPA decided to let them, and the EPA could fine them $32,500 a day while they argued it out.

Oral arguments started last week at the Supreme Court, and ABC News reported yesterday that the EPA came in for some rough treatment at the hands of Justice Samuel Alito:

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JUSTICE ALITO: Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States? You don’t — you buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to. You have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.

MR. STEWART: Well, the first thing I would say is as a matter of standard EPA practice the compliance order would not be the first communication from the agency that would alert the landowner to the belief that there was a violation. The record in this case does not make clear whether that agency practice was followed in this case, but EPA’s typical practice is to alert landowners through prior communications that a violation is existing.

JUSTICE ALITO: Well, so what? Somebody from the EPA says we think that your backyard is a wetlands, so don’t build. So what — what does the homeowner do, having bought the property. Well, all right, I’m just going to put it aside as a nature preserve?

MR. STEWART: At the time that that sort of letter is issued, there is no compliance order and there is no impediment to an after-the-fact permit. That is, at that point the landowner could ask for a permit.

But actually the biggest hit to the argument came from Justice Stephen Breyer, one of the court’s liberals, who forced the EPA’s attorney to acknowledge the catch-22 that the EPA has built to keep people like the Sacketts from gaining their due process:

JUSTICE BREYER: How can they bring an action — I would like some clarification here. The Corps’s regs say the Corps will accept an after-the-fact permit. I mean one after — if they applied tomorrow, the day after getting this order, you would run up against the reg, which says we won’t give you any after the fact, we won’t even consider this matter, until any required initial corrective measures are made. And then, just to be safe, they say that no permit application will be accepted unless the Corps determines that concurrent processing of an after-the-fact permit application is clearly appropriate, “clearly.” So I looked at those two things and said: Of course you can’t apply to the Corps of Engineers; they are not going to accept it unless you have a very unusual case. So I expect you to tell me why I’m wrong about that, if I am, or how many after-the-fact permit applications has the Corps of Engineers accepted. Maybe there are a lot.

MR. STEWART: It’s not precluded, but I would agree with you: It’s very unlikely that without complying with the order -­

JUSTICE BREYER: All right, I agree. If we agree then, look, for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite. And yet — so here you are saying that this statute that says nothing about it precludes review, and then the second thing you say is that this isn’t final. So I read the order. It looks like about as final a thing as I have ever seen. So tell me why I am wrong on those two points.

And this is where the rest of the court began to chime in:

MR. STEWART: Well, we are not arguing that the statute precludes all judicial review. That is, the question whether the Clean Water Act applied to this tract could have been keyed up for a court in either of two ways.

JUSTICE BREYER: You’re arguing on the final part -­

JUSTICE KAGAN: You are arguing that the presumption of reviewability does not apply.

MR. STEWART: To this particular order.

JUSTICE KAGAN: And that seems a very strange position. Why would the presumption of reviewability not apply?

MR. STEWART: First because the order doesn’t express the final — the agency’s final view both in the sense that it invites the Sacketts to provide further comment -

JUSTICE GINSBURG: But they asked for a hearing. Didn’t they ask EPA for a hearing on whether their lands fell within the statute? They did ask for a hearing and the EPA said no.

MR. STEWART: EPA said no to a formal hearing, but I think that would be characteristic agency practice.

Yes, it’s that characteristic practice than denies due process and intimidates people into silence and compliance, whether or not they’ve actually violated any regulations at all.  Later in the transcript, Scalia explicitly lays out how the EPA can avoid any kind of review:

JUSTICE SCALIA: So they can just dispense with this compliance order and tell the Sacketts: In our view, this is a warning; we believe you are in violation of the act; and you will be subject to — you are subject to penalties of 37.5 per day for that violation; and to remedy the violation, in our judgment, you have to fill in and you have to plant, you know, pine trees on the lot. It could do that.

MR. STEWART: They could use the letter for that mechanism. And -­

JUSTICE SCALIA: And there would be no review of that.

MR. STEWART: We would certainly argue there would be no review of that.

It sounds as if the EPA may be fighting a losing battle in Sackett, and that could have wide-ranging implications in agency law for the US.  It’s also quite an eye-opener for those unfamiliar with the lack of recourse available for citizens who run afoul of agencies like the EPA, and a pretty good indication of why American capital hesitates to invest in American economic expansion.  Let’s hope that the Supreme Court uses Sackett to restore the proper role of due process in agency law.


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This is a big f***ing deal

SomeCallMeJohn on January 18, 2012 at 3:00 PM

And on a stage in a debate, there is no way to explain the complexities of this and other cases to use as argument, and “move” the the middle, to eliminate the EPA.

However, the following statement fits within the time frame of, and wins, the debate:
“Then you’ve got their plan, which is, let’s have dirtier air, dirtier water, less people with health insurance. So far at least, I feel better about my plan.”

Soundbites win because they last as long as the attention span of those that will be deciding this (and every) election.

Carnac on January 18, 2012 at 3:01 PM

ajacksonian on January 18, 2012 at 2:58 PM

Well stated. I tip my hat to you, sir.

timberline on January 18, 2012 at 3:01 PM

Mohonri on January 18, 2012 at 1:23 PM

A lot of the agencies violate the separation of powers principal, combining executive, legislative, and judicial functions in one organization. These kind of abuses are exactly why the Framers designed the Federal Government using the trias politica principle. Not for efficiency, but to provide checks and balances.

LarryD on January 18, 2012 at 3:01 PM

Such regulations have been a problem for decades now. To all of you who blame loss of industry on taxation, yes that is part of the problem but the bigger part is EPA, OSHA, et al, and their regulations.

If you want to know why U.S. manufacturers are not as innovative as in decades past, it is because of all these laws (including a cumbersome tax code) that companies are no longer run by engineers and technical people, but by lawyers, & MBA’s who spurn things they cannot understand.

Kermit on January 18, 2012 at 3:07 PM

ajacksonian on January 18, 2012 at 2:58 PM

Very well stated.

Except you missed a key point: We shouldn’t HAVE Bureaucracies making rules, or ANY Bureaucracies AT ALL! You don’t need to check or balance that which has no power or does not exist.

Dump them all. No more Alphabet Soup agencies. PERIOD!

wearyman on January 18, 2012 at 3:08 PM

My husband is an environmental lawyer who worked on the Clean Water Act at EPA. … … He says that allowing judicial review of those big compliance orders would allow commercial property owners to tie everything up in court for years while the wetland gets destroyed.
rockmom on January 18, 2012 at 1:28 PM

Boy you sure read as if you have a cogent arguement! Unfortunately, in this land of laws, we shouldn’t create and write regulations so that some select citizens lose their rights to judicial process. Here is the insult: I am insulted that your husband , the lawyer who worked for the government, thinks/thought that the ends justified the means (something the axis powers followed). Nobody, no organization, no political faction should be denied access to the judicial system to right a grievance just because YOU think they will somehow nullify or evade the regulation. Otherwise, come the revolution …

Old Country Boy on January 18, 2012 at 3:10 PM

Wow. If Kagan, Breyer, and Ginsberg can all come down on the side of the good guys, maybe there is hope after all. If there is a unanimous ruling, and SCOTUS says it has broad applicability, then the Federal Government just got cut off at the knees.

Think of what this will do to ObamaCare. Even if it gets through SCOTUS, it’ll be eviscerated, because its entire regulatory process will be challengeable via Sockett.

Is it too much to dream?

nukemhill on January 18, 2012 at 3:12 PM

And don’t be shocked when Ginsburg, Kagan, and Breyer get in line with the EPA on this one, too.

Their questions simply imply that they are pissed about the intellectual hurdles they will have to leap in the writing of their ruling passing judgement FOR THE EPA.

Carnac on January 18, 2012 at 3:14 PM

Another agency with which you don’t want to “run afoul” is FEMA.

The flood maps in our area were recently “revised”, and now, after 40 years, and no flooding, we are all of a sudden in a type A flood zone.

$3000 per year in flood insurance – no recourse.

labrat on January 18, 2012 at 1:57 PM

Well, to be fair to FEMA, I work with their Flood Maps all the time, and there are not that many made 40 years ago that are still in existence.

And if you look at one of those 40 year old Flood Maps, you will see that most of them are wildly inaccurate; many of them will not even show the stream or river! I’ve even seen some older maps that look like they were drawn by kids. The “newer” FEMA Flood Maps are all generated using satellite technology, and the accuracy of these new maps is absolutely amazing.

And there are also a couple of other issues with those Flood Maps to remember-they also identify what are called “100 Year Flood” Zones and even “500 Year Flood” Zones; what those terms mean is that a major Flood will happen in a designated area on average once every century, but that is absolutely no guarantee that the river or stream won’t have a major flood more than once in that given time frame. In fact it could flood many times. It’s an “averaging” issue.

Also, rivers and streams have been known to change location over time! Due to erosion and other factors, the riverbed or streambed will actually migrate. So what might not have been a Flood Zone when the original map was made 40 years ago could very possibly be one now.

You want real confusion? The US Geological Survey has to constantly keep updating their maps, on the Big Island of Hawai’i. Lava Maps.

http://pubs.usgs.gov/gip/hazards/maps.html

Del Dolemonte on January 18, 2012 at 3:15 PM

This is why EPA, DOT, and OSHA need to be applied to all citizens, not just industry. If all citizens had to experience them as industry does, there would be riots in the streets. But no, usually they are smart enough to just go after industry who they can demonize for fighting back.

MechanicalBill on January 18, 2012 at 1:06 PM

This is what astounds me about our failure to relate the costs of these fools to the public!!The assault on the coal industry is resulting in skyrocketing costs to all utility users! The bizarre lead-based paint rules cost homeowner millions and millions if they own a home built before 1978.All of these Gestapo agencies rip-off the public while the various industries quietly go along with it silently!!Meanwhile the economy sinks deeper and deeper into recession and no one connects the dots!! Remember in November!! Governor Perry is the only candidate that seems to notice this issue!!

Marco on January 18, 2012 at 3:19 PM

Let’s hope that the Supreme Court uses Sackett to restore the proper role of due process in agency law.

Amen. These agencies, especially the EPA, having been running amok for years. They should have been reined in a long time ago. Better late than never.

AZCoyote on January 18, 2012 at 3:19 PM

As a remedy, the court should require the EPA to rebuild their house and fine the EPA $37,500 for every day the damn thing is not complete.

BacaDog on January 18, 2012 at 12:54 PM

The problem is that they could be forced to pay, but the problem persists. The basic problem that makes this untenable is that in dealing with the government, the average citizen has no chance. The government has resources to squander to demonstrate their power and crush anyone else who does not have millions of dollars to fight back with. This is true with any government agency–EPA, IRS, you name it. Government is not our friend or benefactor. They are not interested in giving the citizens a fair shake. They are only interested in maintaining their power. The only way to resolve this is to make government smaller and less powerful.

The OWS dorks almost have it right–the only thing they have wrong is that we are the 99%, and the government is the 1%.

NOMOBO on January 18, 2012 at 3:31 PM

Another agency with which you don’t want to “run afoul” is FEMA.
labrat on January 18, 2012 at 1:57 PM

Del Dolemonte on January 18, 2012 at 3:15 PM

Good points all Del but my experience tells me labrat is closer to my reality. I have a house that is about 60 years old about a 1/4 mile from one of the larger bayous in Houston. My house has never flooded. That bayou was featured last Monday on national news during a heavy rain. My flood maps have been revised twice in the last 8 years, setting me deeper and deeper again into the flood plain. Insurance premiums are well over ten times what they were 8 years ago and it is mandatory with a mortgage.

FEMA and Harris County have spent $700 million in flood control projects along this bayou since Tropical Storm Allison in 2001. We have been told it will reduce our exposure to flooding and thus reduce our insurance rates. Did I mention our rates are more than 10 times what they were when that storm hit?

We residents have appealed for the lower rates only to be told the project needs another $80 million to be complete and FEMA is too broke to help. How convenient huh? FEMA gets the jacked up rates while wait for a couple of pedestrian bridges to be raised.

DanMan on January 18, 2012 at 3:35 PM

At some point, when the feds have offended everyone and utterly trashed the social compact that enables our federal system of government, people will feel quite justified by appealing to the court of physical force against these tyrants.

iconoclast on January 18, 2012 at 3:42 PM

Ah, Grasshoppers.

Don’t you know that the political cass of the US is one giant organized crime syndicate. The agencies like the EPA exist to put the pressure on citizens to where they must throw themselves on the altar of their senator or congressman and pay appropriate homage.

Labamigo on January 18, 2012 at 3:42 PM

I know it wouldn’t necessarily be the fault of some low level EPA agent that came and gave me this kind of news if it were my land, but the poor shmock would be met with flying 5.56 rounds coming towards his head. Then bury him in the “wetlands” and never be found since they wouldn’t want to “disturbe” the wetlands. Let’s hope the SCOTUS makes this scenario unnecessary.

rjulio on January 18, 2012 at 3:43 PM

If you all think the liberals on the Supreme Court are going to limit the regulatory tyranny of federal environmental agencies, you are going to be mighty disappointed.

Liberal justice: Are you saying ordinary citizens have no recourse here?

EPA: Well, there is Form 110-16 and Form 62-76 and Form 17-11, and…uh…we’ve got a hotline!

Liberal justice: Oh, well, so long as there’s a hotline it’s all good. Next case!

Rational Thought on January 18, 2012 at 3:51 PM

It is long past time to close the EPA. It violates the constitution, undermines our property rights and economy, and provides no benefit.

Vashta.Nerada on January 18, 2012 at 4:05 PM

As we’ve learned here in 1 party Mass., if they want to build a solar power plant on top of the wetlands, that’s pretty awesome to the enviros.

http://watchdogsofcarver.blogspot.com/2012/01/sites-best-suited-for-clean-energy.html

But you want to build a house? Stop trying to kill babies and spread asthma!

shanimal on January 18, 2012 at 4:06 PM

Well I’m really disappointed in the lot of you, two pages of comments on a topic like this and no links to Monty Python.

Knott Buyinit on January 18, 2012 at 4:10 PM

Surely this nitwit lawyer realizes how tyrannical his agency’s behavior has been. I mean nobody can be this inured to reason. Right???

Nom de Boom on January 18, 2012 at 12:57 PM

That’s why lawyers get paid the big bucks. For what they know. And what they’re able to not know even though it’s staring them in the face.

didymus on January 18, 2012 at 4:13 PM

DanMan on January 18, 2012 at 3:35 PM

Exactly.

Del Dolemonte on January 18, 2012 at 3:15 PM

The previous revision was 1972. Topographically, my house sits higher than homes less than a mile from me that are NOT in a flood zone. I have a modest home on 4 acres. My annual flood insurance premium exceeds my hazard insurance by $600. It’s ludicrous!

labrat on January 18, 2012 at 4:17 PM

Good points all Del but my experience tells me labrat is closer to my reality. I have a house that is about 60 years old about a 1/4 mile from one of the larger bayous in Houston. My house has never flooded. That bayou was featured last Monday on national news during a heavy rain. My flood maps have been revised twice in the last 8 years, setting me deeper and deeper again into the flood plain. Insurance premiums are well over ten times what they were 8 years ago and it is mandatory with a mortgage.

As long as we’re on the Bayou city…nothing is safe here from flooding so they (Ins) must be making a fortune! Given that every 20 years or so we have a 20 inch rain in about 1-2 days it is going to flood.

Problem comes back to giant government run amock with petty little bureaucrats who have nothing but bitter little lives. Can you say HOA? Same thing. Mall cops? Same deal. Only in this case they have the money (yours and mine) to squash us like bugs.

landowner on January 18, 2012 at 4:20 PM

We shouldn’t get in the habit of waiting for our backsides to be saved by SCOTUS rulings. We have a better recourse through the legislative political process. The best outcome is for the people, through Congress, to decide that we don’t want an agency that can do this at all.

J.E. Dyer on January 18, 2012 at 1:00 PM

+1 billion.

Ed Morrissey on January 18, 2012 at 1:02 PM

Yes. But how do you get Congress to step up and do its job, when the creation of the EPA in the first place was a refusal by Congress to research and regulate the environment itself?

In a right-thinking government, the EPA would be a fact-finding agency making recommendations to Congress, and Congress would then have to either pass or reject the accusations.

As it is, the EPA is part of the executive branch, which allows it to make the laws — excuse me, the regulations — and then enforce those same laws.

Which raises the serious question: If the Founding Fathers went to such pains to separate the legislative and executive functions in our government, why did that government then weld them back together and put it all under the authority of the president? After nearly 200 years of a Constitutional government, it didn’t occur to the geniuses in Washington to separate the powers that way?

You would think Congress would be jealous of giving up legislative power to the executive branch, but somehow they seem fine with it.

didymus on January 18, 2012 at 4:22 PM

So all you people here want dirty air, unclean water, and dead wildlife. Got it.

Because those are the only two options. The EPA is the ONLY thing between us and Global Armageddon!

/

Lily on January 18, 2012 at 4:24 PM

As a remedy, the court should require the EPA to rebuild their house and fine the EPA $37,500 for every day the damn thing is not complete.

BacaDog on January 18, 2012 at 12:54 PM

Yeah, not like the EPA is funded by our tax dollars or anything…

NotCoach on January 18, 2012 at 1:05 PM

True. On the other hand, you could take that money out of their budget, then reduce their budget by that much the next year. If they had to do without new desks and office furniture for a year or two, they might sit up and take notice.

didymus on January 18, 2012 at 4:25 PM

How did the United States morph into the Soviet Union?

Oh, it gets worse than that. Even the loyal opposition has drifted far to the left. Did you know that there is a Republican candidate–some manikin of a man named Willard Romney or something–who signed into law legislation that mandates that you buy health insurance? And he calls his plan “conservative” for some reason?–even though it assumes the efficacy of state supervision of private economic activity to support progressive goals? Strange but true. I kid you not. Make of that what you will.

casuist on January 18, 2012 at 1:13 PM

Sorry, but I’m throwing the BS flag on that one. It could never happen in this country!

/sarc, sadly

didymus on January 18, 2012 at 4:29 PM

My husband is an environmental lawyer who worked on the Clean Water Act at EPA. … … He says that allowing judicial review of those big compliance orders would allow commercial property owners to tie everything up in court for years while the wetland gets destroyed.
rockmom on January 18, 2012 at 1:28 PM

I respect your opinion. Let’s ask another question, one that connects to the intent of law, if not the rule of law; do the ruling of a law on a group infringe on the inalienable rights of an individual?

Here is the crux of these matters, and where the law in all its difficulties, is a winner-take-all proposition. Either the rights of each individual matter, or they don’t matter at all. If you allow the EPA and other government organizations to block judical review of compliance orders to commercial property, you give them the right to walk into your home and make the same declaration to you, with you as an individual having no right for judical review.

This is why this particular court case is so important, and we may have another 9-0 Supreme Court decision.

itsspideyman on January 18, 2012 at 4:32 PM

itsspideyman on January 18, 2012 at 4:32 PM

I suspect that this rule went unchallenged by corporations because it was cheaper to comply. But this administration is prone to overreach, and so they decided this rule would be wonderful for harassing homeowners as well. They probably never expected to be challenged on it because they assumed that they could go anywhere damn place they want and declare any damn thing they want to declare. But this rule also exposes the sheer insanity of the entire process.

A person buys property zoned for housing and complies with all local and state regulations and begins construction of their home only to have the EPA come flying in out of nowhere and start fining you and dictating to you your property rights and how to spend your money?

NotCoach on January 18, 2012 at 4:49 PM

Oh yeah SC beat down for the EPA. This being passed would clear the way for Keystone after o’bummer is out of office. Defund the EPA.

jake49 on January 18, 2012 at 5:04 PM

So all you people here want dirty air, unclean water, and dead wildlife. Got it.

Because those are the only two options. The EPA is the ONLY thing between us and Global Armageddon!

/

Lily on January 18, 2012 at 4:24 PM

Prime example of the hyperbolic ideological fanaticism present in the environment movement and the EPA.

jake49 on January 18, 2012 at 5:07 PM

Your Mamma loves me on January 18, 2012 at 1:49 PM

Actually you are about a half a century to late. It started with Teddy Roosevelt who was a progressive and implemented progressive policies in his administration.

chemman on January 18, 2012 at 5:10 PM

So all you people here want dirty air, unclean water, and dead wildlife. Got it.

Because those are the only two options. The EPA is the ONLY thing between us and Global Armageddon!

/

Lily on January 18, 2012 at 4:24 PM

Prime example of the hyperbolic ideological fanaticism present in the environment movement and the EPA.

jake49 on January 18, 2012 at 5:07 PM

I guess Lily should have put the s for sarcasm after the forward slash.

chemman on January 18, 2012 at 5:14 PM

And don’t be shocked when Ginsburg, Kagan, and Breyer get in line with the EPA on this one, too.

Their questions simply imply that they are pissed about the intellectual hurdles they will have to leap in the writing of their ruling passing judgement FOR THE EPA.

Carnac on January 18, 2012 at 3:14 PM

Exactly.

The SCOTUS will no more kick loose this keystone of our FedGov system than they would fly to the moon on a unicorn. There are 55k regulations made per year, many based upon not laws, but other regulations. The court will not kick that can of worms over by ruling for individual liberty.
It will be 6-3 ruling for the EPA with S, T, and R (along with another chunk of our liberties) on the losing side.

Nathan_OH on January 18, 2012 at 5:37 PM

Milhous! Go to your room!

OTTO on January 18, 2012 at 5:56 PM

Yes, it’s that characteristic practice than denies due process and intimidates people into silence and compliance, whether or not they’ve actually violated any regulations at all.

Well it’s because “our betters” know what good for us.

GarandFan on January 18, 2012 at 6:06 PM

Let’s hope that the Supreme Court uses Sackett to restore the proper role of due process in agency law

,and that congress eliminates the EPA.

burt on January 18, 2012 at 6:29 PM

Sam Alito is from New Jersey. He grew up in Hamilton Twp., a suburb of Trenton in Mercer County. He knows how unreasonable governmental agencies can be on the state level as well. His father was the Director of Research for the NJ Legislature, and I’m sure young Sam heard plenty of horror stories, including about wetlands enforcement, over the years.

In New Jersey, there is simply no more unreasonable office here than wetlands enforcement. I even doubt you would need to stop the search at the state border. My guess would be that there may not be a more unreasonable agency anywhere else under the sun, moon and stars! That office, within our state’s Department of Environmental Protection (DEP), which has overseen wetlands regulation and enforcement for several decades now, has a reputation is quite well known to everyone, in or out of state government.

Over the years, I have even known employees of the DEP who work for other offices within that Department, who hate those wetlands people. They hate them simply because of their nasty, hyper-rigid approach. They are known for a single-minded and vicious approach to enforcement. And they have also displayed a belief in, and have acted upon the old wheeze that the ends justify the means.

Just as an example, I know of one instance where they simply made up evidence — they once produced a micro-fiche copy of a completely bogus “historic” map during the course of discovery in the course of a litigation conference — in order to “prove” that a bridge did not “historically” exist over a stream at a particular point in time, so that they could make a guy tear his house down. The fact was that the bridge indeed existed, and it clearly showed that it did on the original map when they were finally compelled to produce it. And when they were challenged for a copy of the “phoney” film to be turned over, it suddenly disappeared, and no one seemed to know anything about it.

They were trying and kill some guy’s completed home-building project. He had built a house at a certain location on an 11 acre plot of land. The house was already built (modular). But because of a complaint filed afterward by a neighbor (who didn’t like the driveway going past his house), the DEP came in, entirely after the fact, and tried to make him tear down the house and “restore” the wetlands — which consisted of a miniscule stream bed that a wooden logging road bridge had spanned for decades. He had repaired the bridge prior to putting in the house.

The DEP fought him administratively, and then in and out of court for years. It cost him a small fortune. They even once came out to his property for an inspection, and several of them sat down on his front lawn to have a picnic during their lunch break.

That is just one example among thousands.

Trochilus on January 18, 2012 at 6:35 PM

Let’s discuss what a ” wetland ” is.

Did we previously call this type of land swamps, bayous,etc.?

Is that a reasonable tenet ?

If so, New Orleans, Miami, and even Washington D.C., as well as many
other cities are in violation of current EPA edicts.

Should we destroy these cities and restore them to their former
pristine conditions. Might not be that bad of an idea re: D.C

If this wetland idea is one of the European socialist ideas
we can also wipe out Belgium, Netherlands and Luxembourg.

There goes the Hague !

amadan on January 18, 2012 at 6:54 PM

How did the United States morph into the Soviet Union?

Starting with Peanut Carter and every subsequent President since aided and abetted by every house and Senate class since. Its a game of inches not. Freedom is stolen in small bits mostly driven by the Christian-fascits complex of the American Taliban religionalists and the ultra orthodox environuts.

Your Mamma loves me on January 18, 2012 at 1:49 PM

BWAHAHAHAhahahahahahahahahahahahahaha!!!!!!!!!!!!!!!!!!!!11!

Thanks for that bit of humor. Every thread needs a post that’s so stupid that the only reaction can be raucus laughter.
You have fulfilled your duty admirably.

Solaratov on January 18, 2012 at 7:12 PM

Belgium, Netherlands and Luxembourg.

There goes the Hague !

amadan on January 18, 2012 at 6:54 PM

yeah, but then a high tide might do just that anyways :-)

jimver on January 18, 2012 at 7:18 PM

I would just like to say that reasons not fully clear to me I personally am very favorably disposed to Mr. Sackett.

Thank you Mr. Sackett for displaying the kind of independent insistence on personal liberty that Sacketts are known for.

Just remember that when a man knows he’s in the right and just keeps coming, it is very difficult to stop him.

Sackett on January 18, 2012 at 7:21 PM

EPA = Economic PREVENTION Activists

No way are EPA actions such as this consistent with any of our founding documents!! They are essentially trying to completely destroy the concept of private property.

landlines on January 18, 2012 at 7:27 PM

Let’s discuss what a ” wetland ” is.

Did we previously call this type of land swamps, bayous,etc.?

Is that a reasonable tenet ?

If so, New Orleans, Miami, and even Washington D.C., as well as many
other cities are in violation of current EPA edicts.

Should we destroy these cities and restore them to their former
pristine conditions. Might not be that bad of an idea re: D.C

amadan on January 18, 2012 at 6:54 PM

Destroying Washington DC might solve a whole HOST of problems….

Isn’t the historical fact that Washington D.C. is built on worthless swampland the very reason that it exists??? Could Maryland and Virginia have been persuaded to give up this land if it had NOT been swampland (I guess the politically correct term is now ‘wetland’)???

Can the EPA be persuaded to correct a historical wrong…and destroy itself in the process!!!

(I can dream, can’t I?)

landlines on January 18, 2012 at 7:35 PM

This is the kind of America I think Obama wants: regulators & czars tell you what to do or else and there’s to be no argument, or else you’re paying big time. Obama’s motto: power to my people.

How can so many Americans like Obama and his administration?

Chessplayer on January 18, 2012 at 7:47 PM

rockmom on January 18, 2012 at 1:28 PM

I found this post to be infuriating.

He says that allowing judicial review of those big compliance orders would allow commercial property owners to tie everything up in court for years while the wetland gets destroyed.

He needs to reread the Constitution, specifically the 5th Amendment, or he needs to find another line of work. We must not tolerate this mindset in our “public servants.”

georgej on January 18, 2012 at 11:29 PM

As a remedy, the court should require the EPA to rebuild their house and fine the EPA $37,500 for every day the damn thing is not complete.

BacaDog on January 18, 2012 at 12:54 PM

Well, sure, I’ll go along with that — as long as when the EPA gets fined, it has to fire somebody, that is, let the fines come out of the EPA’s operating budget. Think of it as Federal Agency Seppukhu.

RickZ on January 19, 2012 at 8:11 AM

I suspect that this rule went unchallenged by corporations because it was cheaper to comply. But this administration is prone to overreach, and so they decided this rule would be wonderful for harassing homeowners as well. They probably never expected to be challenged on it because they assumed that they could go anywhere damn place they want and declare any damn thing they want to declare. But this rule also exposes the sheer insanity of the entire process.

A person buys property zoned for housing and complies with all local and state regulations and begins construction of their home only to have the EPA come flying in out of nowhere and start fining you and dictating to you your property rights and how to spend your money?

NotCoach on January 18, 2012 at 4:49 PM

Excellent point NotCoach. I can understand the reluctance of a corporation wishing to just allocate the money to a government organization payoff (lets face it, this is what it is)and get on with its project rather than spending years defending itself against a hopeless task. It is another thing, for a person who plants his lifeblood in a place, and makes it theirs. These are the kind of issues that will get an American’s back up and make a stand.

The EPA overreach may be a monumental decision for the affirmation of fundamental liberty. I HOPE.

itsspideyman on January 19, 2012 at 9:29 AM

He says that allowing judicial review of those big compliance orders would allow commercial property owners to tie everything up in court for years while the wetland gets destroyed.

rockmom on January 18, 2012 at 1:28 PM

I found this post to be infuriating.

georgej on January 18, 2012 at 11:29 PM

Me too. Their mindset was eye-opening.

itsspideyman on January 19, 2012 at 9:32 AM

… (something the axis powers followed) …
Old Country Boy on January 18, 2012 at 3:10 PM

**TWEEEEEEET** ~~flag~~
Godwin violation on the argument. Loss of down.

Too bad, ’cause it was a good argument.

GWB on January 19, 2012 at 10:18 AM

Quite surprised that no one has mentioned the FDA and their extra-constitutional powers. In comparision, the FDA makes the EPA look rather incompetent vis-a-vis destruction of constitutional rights.

I’ll admit to feeling more than a little sheepish when, after the EPA (acting on behalf of the delta smelt) shut down irrigation in California, I wondered why the farmers didn’t sue. Duh.

If the progressives on SCOTUS vote to deprive the EPA of their God-like power, I imagine most folks in the current administration will soil their nightshirts and commence rubbing themselves with ashes.

Anti_anti on January 19, 2012 at 10:44 AM

I guess Lily should have put the s for sarcasm after the forward slash.

chemman on January 18, 2012 at 5:14 PM

I’m surprised that Lily even put a slash. She is keeping a list of those that cannot fathom sarcasm in its printed form without someone saying, “Look Dummy, its sarcasm.” What she plans on doing with this list, I have no idea.

PrettyD_Vicious on January 19, 2012 at 11:08 AM

My husband is an environmental lawyer who worked on the Clean Water Act at EPA. He says this provision of the law was never intended to be applied to individual homeowners like the Sacketts, and EPA was foolish in doing so in this case, and will likely have its butt handed to it by the Court. It is meant to be applied to large commercial properties where owners routinely start filling in areas that are likely wetlands and then try to claim they are not wetlands (because they have already filled in the wet areas) and so they do not even have to apply for a permit. The fines are intended to scare large commercial property owners away from doing this. He says that allowing judicial review of those big compliance orders would allow commercial property owners to tie everything up in court for years while the wetland gets destroyed.

rockmom on January 18, 2012 at 1:28 PM

Yeah, right! And what did your husband tell you that he has done within the EPA in order to try to correct those practices? What did he tell you that he has done to at least draw attention to the fact that the law has been, and continues to be, misapplied?

My guess would be little or nothing. Hello? You still there?

The problem is a good deal larger than the enforcement done by the federal EPA. States have their own departments of environmental protection, and they do their own enforcement. Federal pass-through money provides a basis for a lot (but not all) such enforcement.

For example, in addition to the case I cited above, I know of another case from a few years ago up in Morris County, NJ, where a guy living in a small residential community (1/4 to 1/2 acre lots) had a puddle that would appear in his back yard after large rainstorms. There was a small “sink” or depression a few feet across that would fill up with water and then go away as the ground dried up. So he put in some fill to regrade his own back yard. His neighbor didn’t like it and complained to the NJ DEP. They came roaring in alleging that the guy was filling in wetlands, and demanding that he remove the fill, and pay fines! He ended up spending a huge amount of money in legal fees before it was finally resolved.

Trochilus on January 19, 2012 at 11:20 AM

My husband is an environmental lawyer who worked on the Clean Water Act at EPA. … … He says that allowing judicial review of those big compliance orders would allow commercial property owners to tie everything up in court for years while the wetland gets destroyed.
rockmom on January 18, 2012 at 1:28 PM

So the government should be allowed to do whatever it wants, exercising full control, and not have any review process to see if they’re abusing this power?

Yeah, that couldn’t possibly go wrong; I mean sure it’s a dictatorial system by which citizens have no rights.. but for clean water we had to remove all rights from citizens and go to a dictatorship. Freedom and rights are bad for people… only the government knows what is best for you.

Big Brother is your friend… you can trust big brother. Don’t worry that the government is all powerful and nobody can stop it; just do as you’re told.

If you thought you were being persuasive for a Fascist Dictatorship run by Enviro-whackos … you might be surprised to find out you weren’t really convincing us that this would be a good thing; or that it wasn’t the goal of these rulings.

gekkobear on January 19, 2012 at 12:33 PM

I believe Washington DC was a ‘wetlands’ at one time. Perhaps it could be declared so in retrospect, necessitating its destruction and removal of all debris from the area so as to return it to its natural state. This is just another power grab by the evironmentalist-backed elitists. “You’re wrong until we say.”

LizardLips on January 19, 2012 at 6:14 PM

If the EPA wishes to regulate “wetlands” then they should buy the land. Being the owner, they can do whatever they like.
We have the cleanest air and water in the world today. There is no reason to make the air and water cleaner than pre-historic times. Therefore, disband the EPA. Let the states handle the matter.

gasmeterguy on January 20, 2012 at 8:44 AM

But what did the “wise latina” say?

magicbeans on January 20, 2012 at 10:48 AM

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