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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A LI TO!

you go boy :)

cmsinaz on January 18, 2012 at 12:50 PM

The EPA should be deleted and the state should take charge of their own environmental issues. Its not a federal issue, never was and shouldn’t have been MADE a federal issue.

TX-96 on January 18, 2012 at 12:51 PM

It seems impossible, doesn’t it? As Justice Alito said, you wouldn’t expect it to happen in America.

Except that I would, this sort of thing happens all the time. I hope this is the start of the end of that BS.

Bob's Kid on January 18, 2012 at 12:53 PM

Alito’s a true pisan!

celtic warrior on January 18, 2012 at 12:53 PM

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.

The circle logic of Government is unbelievable. “Agency Practice”???

Screw you, EPA.

portlandon on January 18, 2012 at 12:53 PM

How did the United States morph into the Soviet Union?

rbj on January 18, 2012 at 12:54 PM

Thank you for keeping us appraised on this case and others like it.

To me it’s obvious that last part should be used in a 30 second commercial by a PAC or the Republican candidate to show the excesses of the current administration and how it can run roughshod over individual citizens.

Keep it up.

njrob on January 18, 2012 at 12:54 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

You know the gig is up when Ginsburg and Kagan are on to you.

Kraken on January 18, 2012 at 12:55 PM

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

On another note, I am struck by just how right C.S. Lewis was when he talked about the “mundanity of evil,” that it is more often carried out by some normal-looking bureaucrat than by some glaringly obvious devil in a red cape. These functionaries who destroy the lives of so many people give every indication of being normal, average Americans. There’s just the megalomania that surfaces every now and then…

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

I do hope the Justices find for the Sackett’s! The epa is one of the worse agencies there is in dc and should BE defunded! The amount of damage the epa has and is doing to our nation is horrible!
L

letget on January 18, 2012 at 12:58 PM

Gee, I sure hope they put the EPA in charge of our healthcare too.

Lily on January 18, 2012 at 12:59 PM

BacaDog on January 18, 2012 at 12:54 PM

This sort of thing will not stop until either the EPA is disbanded or the bureaucrats directly involved suffer the same things they inflict on others. Rub their noses in it. Make them tear down their homes and pay millions in fines. Epiphany!

Nom de Boom on January 18, 2012 at 12:59 PM

I might be duplicating but this pearl of wisdom is from the headlines

Canada is a worthless country anyway. Why haven’t we invaded them?

liberal4life on January 18, 2012 at 12:01 PM

Good stuff.

Cindy Munford on January 18, 2012 at 12:59 PM

Does Mr. Stewart have any idea how utterly stupid he sounds?

herm2416 on January 18, 2012 at 12:59 PM

Contessa Brewer wants to know if the EPA has any degree of common sense.

BacaDog on January 18, 2012 at 12:59 PM

WHOO HOO! Alito! YEAH!

Shay on January 18, 2012 at 12:59 PM

Cindy Munford on January 18, 2012 at 12:59 PM

Wrong thread, so sorry.

Cindy Munford on January 18, 2012 at 12:59 PM

Thanks for the excellent summary, Ed. This could indeed have significant implications.

That said, it would be a much better solution if the people attacked this problem through Congress. Congress has the clear authority to drastically modify everything — everything — the EPA does.

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

Think of the billions the federal budget could be reduced if all EPA employees were let go.

Then there are the consent decrees with environmental groups to increase the reach of EPA regulations.

And the many regulations based on bad science. Workers who practically swam in PCB oils have lower cancer rates that the general public, but EPA regulates it as a cancer risk.

Fire them.

WhatNot on January 18, 2012 at 1:02 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

Does Mr. Stewart have any idea how utterly stupid he sounds?

herm2416 on January 18, 2012 at 12:59 PM

His job is to argue the government’s case no matter how ridiculous that case might be. It is those running the EPA and this administration that should be heckled and criticized, not a man trying to do his job under tough circumstances.

NotCoach on January 18, 2012 at 1:03 PM

quick, name the Republican presidential nominee’s that want to eliminate the EPA?

Coolidge_Conservative on January 18, 2012 at 1:05 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

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 falls well within regulatory rights of the EPA. Afterall, all lands, monies and property belong to the govt. and it will benevolently bestow and distribute back to taxpayers/plebes said land, money, property as it sees fit because the “commerce clause” empowers and enables “IT” to do so! So there!

crr6

////

JAM on January 18, 2012 at 1:07 PM

I was disappointed with a lot of what Bush did, but Alito and Roberts were good appointments that make up for a lot of it. I’d like to hear Romney, Newt and the rest explain their views on judges. And not in sound bite form either. I’m guessing two or three appointments to the SC will occur next term.

Flange on January 18, 2012 at 1:07 PM

That said, it would be a much better solution if the people attacked this problem through Congress. Congress has the clear authority to drastically modify everything — everything — the EPA does.

like…eliminate it. roll its truly important functions into an interior department branch.

Coolidge_Conservative on January 18, 2012 at 1:08 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

Maybe they could use the fines they collected over the years to pay back all the damage that they caused.

A class action suit might be in order here.

Lily on January 18, 2012 at 1:08 PM

EPA out of control, surely not.

Bmore on January 18, 2012 at 1:09 PM

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

NotCoach on January 18, 2012 at 1:05 PM

Well hell, I’d rather have our tax dollars being returned to some citizen rather than being doled out to bureaucrats or Bambi’s liberal pals.

BacaDog on January 18, 2012 at 1:10 PM

The States should be in charge of their own environmental health!
The Federal agencies are arrogant brutal dictators.

KOOLAID2 on January 18, 2012 at 1:10 PM

This is all fine and dandy but take it from someone who has been there, it’s no treat dealing with the DEC at the state level either.

matd on January 18, 2012 at 1:11 PM

Does Mr. Stewart have any idea how utterly stupid he sounds?

herm2416 on January 18, 2012 at 12:59 PM

His job is to argue the government’s case no matter how ridiculous that case might be. It is those running the EPA and this administration that should be heckled and criticized, not a man trying to do his job under tough circumstances.

NotCoach on January 18, 2012 at 1:03 PM

Good point! However, he still is making an incredible case against this couple. I read somewhere that there are houses located within thirty feet of either side of the Sacketts’ lot. I agree with J.E. Dyer, the EPA must lose its power by regulation, through congressional legislation.

herm2416 on January 18, 2012 at 1:11 PM

Gosh, this may be history in the making. The first time the Supreme Court has had 2 unanimous decisions against an administration. Go Obama!

dbfwelch on January 18, 2012 at 1:11 PM

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

Easy solution: take it out of the salary of those responsible for 1) creating such a draconian regulation, or 2) persecuting the homeowners.

Voila, no budget impact, problem solved and message sent.

Mohonri on January 18, 2012 at 1:12 PM

NotCoach on January 18, 2012 at 1:03 PM

Can’t agree with you on that. Stewart should have enough moral compunction to stand up to his bosses and say “Sorry, but your actions are indefensible, and I won’t be party to them.” This isn’t just a criminal case where the “everyone deserves a defense” dictum applies. This is aiding and abetting a crime under color of “law.”

Nom de Boom on January 18, 2012 at 1:13 PM

Does Mr. Stewart have any idea how utterly stupid he sounds?

herm2416 on January 18, 2012 at 12:59 PM

Maybe it is his way of performing ritual seppuku to atone for his agency’s misdeeds.

Lily on January 18, 2012 at 1:13 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

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

Are you wingnuts saying that that^^^ is not a good idea? How are the Soviets supposed to manage everything without the Kulaks sabotaging the will of the Great Leader? You’re impractical.

– Dems

kunegetikos on January 18, 2012 at 1:14 PM

crr6

Whatever happened to this twit anyway?

CantCureStupid on January 18, 2012 at 1:15 PM

Dang, even the liberals sound a bit miffed.

Cindy Munford on January 18, 2012 at 1:16 PM

I’m sure Harriette Meiers would have come to the same conclusion.

billy on January 18, 2012 at 1:19 PM

Ed,you be hot today.We much appreciate it.
Best ,Al

celtic warrior on January 18, 2012 at 1:19 PM

Can’t agree with you on that. Stewart should have enough moral compunction to stand up to his bosses and say “Sorry, but your actions are indefensible, and I won’t be party to them.” This isn’t just a criminal case where the “everyone deserves a defense” dictum applies. This is aiding and abetting a crime under color of “law.”

Nom de Boom on January 18, 2012 at 1:13 PM

Lisa P. Jackson.

Stewart is just a lawyer doing his job. You would have a point if the EPA asked him to lie to the court or manipulate/manufacture evidence. But if they are not asking him to participate in illegal activity he is duty bound as an EPA lawyer to argue this case.

NotCoach on January 18, 2012 at 1:22 PM

Maybe there is going to be hope from the SC on repeal of bhocare? IMO, bhocare is almost worse than what the epa is up to?
L

letget on January 18, 2012 at 1:22 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

Abso-fricken-lutely.

D-fusit on January 18, 2012 at 1:23 PM

I was wondering on what grounds the landowners were suing the EPA, and found it on the SCOTUS web site:

Issue: (1) Whether petitioners may seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U.S.C. § 704; and (2) whether, if not, petitioner’s inability to seek pre-enforcement judicial review of the administrative compliance order violates their rights under the Due Process Clause?

In short, there’s two questions here: 1) Whether the regulations allow the Sacketts to appeal the EPA’s decision prior to penalties being assessed, and 2) if they can’t, whether those same regulations run afoul of the Constitution. The EPA’s going to have a REAL tough road arguing this one.

The larger issue, however is “why do we have an unaccountable bureaucracy with such power?” If an environmental question is such a huge issue that it must be addressed, the power should rest with the elected legislature to draft such regulation. (This, of course, assumes the federal government has the constitutional authority to do so in the first place.)

Seriously–if a Senator or Representative makes bad legislation, they lose their jobs. If an EPA bureaucrat makes a bad regulation, there’s no consequence at all.

If I were king, I’d send out an executive order saying “all regulations are hereby suspended until they are individually voted approved through the legislative process.”

Mohonri on January 18, 2012 at 1:23 PM

The Environmental Pissontheconstitution Agency should be at the very top of the list of agencies to shutter in 2013. I can’t think of a single thing they have ever done to “protect” the environment while I can name at least 100 things they have done to usurp the Congress and, worse, the Constitution.

TXUS on January 18, 2012 at 1:24 PM

EPA: “But its for the children”

BobMbx on January 18, 2012 at 1:25 PM

[[[Could the right ruling here affect Kelo?]]]

“You can appeal anytime you want. We don’t accept appeals.”

In the Soviet Union an old lady stood in line for two hours to buy fish. When she got to the front of the line the man behind the counter but up a sign that said “OUT OF VEGETABLES.”

The old lady says, “But… I thought this fish line…”

The man says, “No, this vegetable line where we are out of vegetables. You must go to fish line, where they are out of fish.”

Akzed on January 18, 2012 at 1:25 PM

Oh to have someone/anyone who could articulate this situation to the masses…alas, only Newt

winston on January 18, 2012 at 1:25 PM

Isn’t this case just a textbook example of tyranny? Looks like it to me: arbitrary rules, not reviewable, enormous fines, total control in the hands of government.

Screw the “pursuit of happiness”– you the citizen will do what we tell you.

Unless you are some big giving company or union dude, so that you can get a Congressman or Senator or some big guy in the ObamaNation to help you, you are dead if the EPA comes after you.

MTF on January 18, 2012 at 1:27 PM

Every single federal agency behaves the same way the EPA does with respect to being judge, jury, and executioner.

The EPA learned this from the other agencies. It was only created in the 70′s by Nixon, after all…

wildcat72 on January 18, 2012 at 1:28 PM

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

The Justices fail to appreciate that lack of reviewability is part of the design for implementing leftist policies through administrative rules that would not otherwise be able to be passed in US Congress as part of normal legislation.

Difficultas_Est_Imperium on January 18, 2012 at 1:28 PM

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

29Victor on January 18, 2012 at 1:29 PM

The money lines, as I call it:


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 (Ed Morrisey):

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.


“We would certainly argue there would
(should?) be no
review of that.”
? ? ! ! ! !

When the first thread was posted at Hotair.com about this story, I had said that the actions of the EPA as regards this story, constituted a valid grounds basis for overt, no-holds-barred, ORGANIZED REVOLT against the EPA.

I still say that.

listens2glenn on January 18, 2012 at 1:29 PM

Dr Ray Stantz: Everything was fine with our system until the power grid was shut off by dickless here.
EPA regulator: They caused an explosion!
Mayor: Is this true?
Dr. Peter Venkman: Yes it’s true. [pause] This man has no dick…

Terp Mole on January 18, 2012 at 1:32 PM

The EPA and other government agencies have been riding roughshod over the public they supposedly serve with regulatory hooves for a long, long time. The courts have, more often than not, approved of it.

But the EPA crossed a red line here. They presumed to infringe on the right to judicial review. That trespassed on the power of the courts to rubber stamp their depredations, with an occasional reversal just to prove the point.

Can’t have that. Even the Left Wing of the Court (well, most of them, anyway) understand the importance of defending their fiefdom and retaining their power.

novaculus on January 18, 2012 at 1:33 PM

The EPA should be deleted and the state should take charge of their own environmental issues. Its not a federal issue, never was and shouldn’t have been MADE a federal issue.

TX-96 on January 18, 2012 at 12:51 PM

All I can tell you is that it DOES also happen at state level. A few years back we bought some wine grapes from a grower in CA and after a few discussions on quality of fruit to be delivered (with witnesses) we were handed 10 tons of mostly crap, urns out modus operandi with this grower and the reason no one wants to buy grapes from him since. I decided to do the right thing and accept the way underpar fruit with a notion of lower price for the fruit than agreed upon (all handshake), better the grower get paid for it than throw the entire batch out and get paid nothing. Wrong decision. The grower refused to accept less after the fact, got lien on our bottled product (wine country courts are nothing but grower centric) and then had the balls to file a claim with CA Ag department including a fake grape contract (which we never had). CA Ag dept then went after us with scare and blackmail tactics and on 3 separate occasions, last one with a dept big wig full of himself, I pointed out all the problems with the claim and made sure to clearly point out fake contract as well. Was told that they will look into it and get back to us. Still waiting, 4+ years later and no, I am not holding my breath. Ag dept also called a number of growers to scare them into joining the complaint, not one did. All this is more than highly illegal and unethical. Taking legal action against them in a pro-growers court would be suicidal, we decided to take a hit. Just got another VM from Ag Dept this morning, they want their annual fees and such from us, take a guess if I will pay even a penny, scare tactics or not. Told them before that I won’t take legal action on my own, but will encourage it and will be more than happy to see them in court if they do. So far, not a peep from them.

riddick on January 18, 2012 at 1:34 PM

I refer our learned colleagues to Venkman vs. EPA (1984).

Terp Mole on January 18, 2012 at 1:35 PM

There is no reason on earth this argument should be taking place.

This is something called emminent domain; it’s in the Constitution. If the government wants to turn a private citizen’s property into a nature reserve, it can do that. But it has to PAY for the property rights it has usurped.

As long as the Supreme Court continues to support this insane violation of the Constitution, all their pointless grandstanding means nothing.

logis on January 18, 2012 at 1:36 PM

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

This case might be far more insidious than that. Once the Supremes rule that the EPA must revise the administrative rules to provide a method of appeals, then precedent will have been set that the EPA can and has established administrative regulation of individual property holders under the same rules.

Difficultas_Est_Imperium on January 18, 2012 at 1:40 PM

Nothing like this ever happens.

/crr6

DrSteve on January 18, 2012 at 1:40 PM

That said, it would be a much better solution if the people attacked this problem through Congress. Congress has the clear authority to drastically modify everything — everything — the EPA does.

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.

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

About half of congress at any given time is radicaly opposed to reform and instead wants to promote more ‘government solutions’. About 1/2 of the remainder are so weak willed that they daren’t stand up to the media firestorm that would ensue. Tell me then, how do the people get congress to act in reducing buracracy?

I really want to know. Most congressmen have constituents on both sides of the issues and can point to the half they prefer to pick their side. A corelation to this is that a substantial portion of constituents are going to get the nicely worded runaround from their congressmen even if they contacted them. Oh, and it would help if you would use a modern success story like the repeal of Obamacare… oh wait.

Hell, my republican members of congress can’t think of a single federal judge that needs to be impeached, or circut disbanded and split. They exercise oversight on the executive in a similarly limp wristed way, asking questions and waiting months for a reply before repeating ‘the process’.

AnotherOpinion on January 18, 2012 at 1:41 PM

Hopefully they’ll get it right. But I’m still bitter about Kelo, and probably always will. Even a just ruling won’t alter my conviction that the SCOTUS is a fatally flawed institution.

abobo on January 18, 2012 at 1:42 PM

“There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.”

= Catch 22

PackerBronco on January 18, 2012 at 1:44 PM

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

I agree. But our legislative body has abdicated its role in actually legislating, for sake of self-preservation. The only things they seem to weigh in on are made up “emergencies” which keep them safe from the ire of the voting public. If they push the hard decisions into the non-legislative relm, it gives them something (a “them”) to blame as they stand and shrug “what can we do?”

Budget anyone? Wait – isn’t someone peeing on something…look over there…

Hueydriver on January 18, 2012 at 1:46 PM

How did the United States morph into the Soviet Union?

rbj on January 18, 2012 at 12:54 PM

It forgot the principles of the founding fathers, the most important of with is that power needs to be restrained and balanced because power corrupts and ultimately enslaves.

It kept giving more and more power to government, trusting that the inherent goodness of man (their belief) would preclude abuse.

The EPA official doesn’t see this because he is feverent in the belief of his own goodness and thus why should his power be restrained? He only wants to do good.

PackerBronco on January 18, 2012 at 1:48 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

Thanks and who ultimately pays for that?

PackerBronco on January 18, 2012 at 1:49 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

…nicely worded runaround from their congressmen…
AnotherOpinion on January 18, 2012 at 1:41 PM

Just received 3 such from my congressmen and senators whom I recently wrote concerning SOPA. Nicely worded “hey, I haven’t figured out out this could benefit/hurt me politically, so I don’t know where I stand on this.”

Nothing like a representative that has no core values. Right and wrong hinge on how a stance affects your reelection.

Hueydriver on January 18, 2012 at 1:50 PM

This is why Liberals go ballistic over the accurate description of the USA as a Fascist State. The Government does not own the means of Production, but through permitting process, licenses, waivers, “special” Zoning, Grandfathering clauses, fees and fines, plus permission for access to the Courts they make sure the “trains run on time”. Private Property Rights are a joke now, for a cup of water on your land will lead to land seizure or control of your property. Without this power, Liberals would not be able to force regular people to conform to their Utopian dreams.

The water we drink, the Air we breath, the food we eat, the land we work, are all now fully under the “management” of the Liberal Class.

Another example: Gibson Guitar. The Government does not own the factory, but it extends oversight, licensing and control to the very raw materials that the factory uses to make its product. If you don’t want trouble, you make the right bribe to the right Party or suddenly that wood you are using becomes Contraband.

A fundamental change needs to take place.

Bulletchaser on January 18, 2012 at 1:51 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

I agree in principle. However, that leaves us, the taxpayer on the hook. However, if the Court would levy the Officials of the EPA, especially the scum lawyers like Mr. Stewart and the head of the agency to rebuild the home and cover the fine of $37,500 per day, that I could really get behind that.

PrettyD_Vicious on January 18, 2012 at 1:53 PM

More please.

DumboTheAvenger on January 18, 2012 at 1:54 PM

A little side story on the treehugging infested EPA, About five years ago my county had an out break of bark beetles, it showed up first on Federal land, I’m completely surrounded by Federal land. Request were made to go in and cut around the area in hopes it might contain it. You guessed it, inaction, it spread like wild fire. Actually in hind sight wildfire would have been easier to clean up after. The county lost millions and millions of board feet of beautiful 150 year old white pines. I lost 226, not to mention all the residual damage of big trees coming down and taking out the others. Wasted, the market became saturated so quickly with the glut, prices tumbled. You couldn’t give it away. This is a prime example of what’s wrong with the Government. The politicization into what should be self standing entities. So a question to treehuggers. Does it make you happy to waste good trees rather then profit from them? More Government gonna repair the loss from poor Government actions in the first place. Here’s a dollar by yourself a clue.

Bmore on January 18, 2012 at 1:55 PM

Can’t agree with you on that. Stewart should have enough moral compunction to stand up to his bosses and say “Sorry, but your actions are indefensible, and I won’t be party to them.” This isn’t just a criminal case where the “everyone deserves a defense” dictum applies. This is aiding and abetting a crime under color of “law.”

Nom de Boom on January 18, 2012 at 1:13 PM

+ 1 on that.

And to those who would argue that STewart is just doing his job, well bollocks. A lawyer is not honor-bound to defend a client whom he KNOWS is guilty and any lawyer worth the name “human being” is not honor bound to advance a horrible and immoral government practice just because the government is writing his paycheck.

PackerBronco on January 18, 2012 at 1:55 PM

casuist on January 18, 2012 at 1:13 PM

You do realize, that had he vetoed the legislation this law would still have occurred, right? Because, he did not have a veto proof legislature and they would have overridden his veto,you do know that right?

Let’s get the facts out there, please. Each state has the right to screw up, folks can vote with their feet or vote to change their legislators. But, when it comes from a command and control Federal government we end up with Agencies like this to override the states laws. You get that, right?

uhangtight on January 18, 2012 at 1:55 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

Here’s a dollar buy yourself a clue.

Bmore on January 18, 2012 at 1:55 PM

Sorry about the typo, happens when I’ pis-ed.

Bmore on January 18, 2012 at 2:02 PM

Sorry about the typo, happens when I’m pis-ed.

Bmore on January 18, 2012 at 2:02 PM

See what I mean.

Bmore on January 18, 2012 at 2:03 PM

Here’s the botto line people:

Each and everyone of you are criminals. Today, right now, you are probably violating dozens of regularations and statutes and you’re not even aware of it. The only reason you are not being fined, harrassed, or jailed is that the government isn’t interested and doesn’t have to resources to check up on you.

But let’s just say you become a nuisance. You embarrass the President or the Governor with an ill-timed question or remark. You do something to make life difficult for some bureacrat somewhere and that bureacrat has connections …

Then you’ll discover all of the laws you’ve been breaking …

PackerBronco on January 18, 2012 at 2:04 PM

Ginsburg woke up long enough to ask a question or two? Must have been a rousing argument.

slickwillie2001 on January 18, 2012 at 2:06 PM

How did the United States morph into the Soviet Union?

rbj on January 18, 2012 at 12:54 PM

“Long march through the institutions”, comrade. How else?

Never give a leftist and inch. They will take a mile and chide you for not giving them two.

wearyman on January 18, 2012 at 2:08 PM

wildcat72 on January 18, 2012 at 1:28 PM

Exactly, through an Executive Order in the 1970′s(or thereabouts), which should mean that through another EO, this agency could be dispensed of immediately upon a Republican getting into the WH.

To think they lefties hated Nixon so much, but boy they love those departments he created through EO’s EPA and Dept of Education. Jimmy Carter can be thanks for the EO that created the Dept of Energy. I think I got the owners of the EOs right.

Get rid of them all

uhangtight on January 18, 2012 at 2:13 PM

This is a case of guilty before proven innocent.

The case begins with no legal right to even a hearing to prove you are innocent. You have to admit guilt by reason of paying the fines and then maybe get a hearing and maybe not. If they play the “customary EPA practice” you may be told to shut up and be quiet.

Bunch of Nigerians.

seven on January 18, 2012 at 2:13 PM

This case might be far more insidious than that. Once the Supremes rule that the EPA must revise the administrative rules to provide a method of appeals, then precedent will have been set that the EPA can and has established administrative regulation of individual property holders under the same rules.

Difficultas_Est_Imperium on January 18, 2012 at 1:40 PM

Then here’s Justice BobMbx’s ruling:

“EPA is enjoined from acting on this rule until every square inch of the United States, its territories and possessions has been evaluated by individual parcel as to whether it is or is not a wetland as defined in the current rule.

EPA shall file with the Court and provide official notification to the legal owner a copy of each individual evaluation which shall form a part of any future litigation or rule making.

EPA shall not have the power to make adjustment to any evaluation so filed with the Court.”

BobMbx on January 18, 2012 at 2:20 PM

This is only ONE of how many federal agencies? The FAA does this all the time – especially the small mom & pop businesses that do not have the resources to challenge them. Intimidation and threats.

AndAero on January 18, 2012 at 2:21 PM

Does Mr. Stewart have any idea how utterly stupid he sounds?

herm2416

Of course not. He’s surrounded all day every day by people who think just like him and tell him how wonderful he is for being so zealous in his fight to protect the environment from would-be homeowners like the Sacketts.

Socratease on January 18, 2012 at 2:22 PM

Abolish the EPA

Our Air, Water and Lands are cleaner now than they have ever been

The EPA had nothing to do with that

Kini on January 18, 2012 at 2:28 PM

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

That is the truth of the situation, congress is ultimately to blame and needs to be forced to FIX IT!

NotCoach on January 18, 2012 at 1:03 PM

It is still dishonest to argue nonsense like this. No a lawyer should be required to speak the truth in a court, especially in front of the Supreme Court.

cigarcamel on January 18, 2012 at 2:30 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

Thanks and who ultimately pays for that?

PackerBronco on January 18, 2012 at 1:49 PM

We’ve already paid for it. I just want some citizen to get a part of it back until we can do away with the entire agency.

BacaDog on January 18, 2012 at 2:31 PM

Heck, even Kagan sounds like she can’t believe this crapola.

This is huge – this is almost standard practice for agencies these days, it is so widespread that an adverse ruling could put a crack in the foundation of the dictatorship of the bureaucracy.

Did you know if the Dept. of Housing objects, you can’t even protest the location of one of their projects? Yup, no pesky “1st Amendment” red tape gets in the way of the Nomenklatura bravely changing America. And that’s no Obama innovation – the rule’s been in place for many years.

Adjoran on January 18, 2012 at 2:31 PM

Caution: The questions and comments a Justice makes in oral argument, does not always reveal how they rule on a case.

slp on January 18, 2012 at 2:39 PM

There’s another word for this, of course.

Evil.

The agency practices are evil. The people like that idiot lawyer, are participating in evil.

Sugar coat it how you will, but if it looks like a duck, sounds like a duck, and smells like a duck, it’s an effin’ duck.

davisbr on January 18, 2012 at 2:39 PM

quick, name the Republican presidential nominee’s that want to eliminate the EPA?

Coolidge_Conservative on January 18, 2012 at 1:05 PM

Ron Paul

realitycheck on January 18, 2012 at 2:48 PM

BobMbx on January 18, 2012 at 2:20 PM

spot on Bob.

How did the United States morph into the Soviet Union?

rbj on January 18, 2012 at 12:54 PM

A good friend of mine is working contract for ExxonMobil on the Sahklin (sp?) Island project. One of the tasks is to get a huge rig from Alaska to S. Korea for retro fitting and then pushing it across land to the final destination somewhere in north Russia. There are several oil companies involved and he is in charge of gaining environmental clearance for the move overland.

His approach has been to review every interested party’s environmantal regulation pertaining to every facet of the task and apply the most stringent. Except for jumping through local Russian hoops that typically involve nothing more than payola the US laws are the most thorough and painstaking.

He saw the procedures and comments generated through permitting I have to go through with my local Harris County Flood Control District and declared he had it better than me. They make it up as they go.

DanMan on January 18, 2012 at 2:57 PM

The idea that anything created by Congress should NOT come up for review on a regular basis is nuts.

Put in a 10 year sunset on every voluntary agency, every regulation, and every law made to enable such agencies so that the people and Congress can hold these institutions to account for themselves. If they don’t get re-upped they go away.

There are very few mandatory agencies that the government must have via the Constitution and even those should have their regulations and statutes reviewed periodically for revision. Such an agency would still be around until it can get proper regulations to work with, which means those parts of the government go on hold until such time as Congress can figure out what those are.

This insanity of ratcheting up government size without frequent review is asinine. Simple regulations to carry out the will of Congress should also have to PASS Congress with a simple majority vote so that they are all on the hook for supporting them. Either House should be able to do away with any regulation by a simple majority vote to keep the bureaucracy in check.

Without checks and balances on the bureaucracy you get tyranny, and that is what we are getting into now.

ajacksonian on January 18, 2012 at 2:58 PM

Does Mr. Stewart have any idea how utterly stupid he sounds?

herm2416 on January 18, 2012 at 12:59 PM

His paycheck tells him that he is very smart.

timberline on January 18, 2012 at 2:59 PM

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