SCOTUS hits EPA with an epic smackdown on Sackett

posted at 8:40 am on March 22, 2012 by Ed Morrissey

It’s possible to overstate the impact of the Supreme Court’s unanimous decision yesterday on Sackett v EPA, which reversed an EPA compliance order that kept an Idaho couple from building a home on land expressly zoned for that purpose.  As Ilya Somin notes, the court never took up the question of the Fifth Amendment, but rather limited its scope to the Administrative Procedure Act, which means that a Congressional repeal of the APA could undo Sackett, at least temporarily.  As things stand now, however, the Supreme Court has changed the manner in which agencies have to act when issuing compliance orders, which now — despite the Obama administration’s best legal efforts — have to be subject to judicial review before the EPA can start levying massive fines as an extortive device to keep from having their orders challenged.

I take a look at the impact in my column for The Fiscal Times:

The EPA tried its best to keep the federal courts out of the dispute and the Sacketts in limbo, in part by claiming that the agency had not committed a “final agency action,” which would allow the Sacketts to file suit under the Administrative Procedure Act (APA), the aegis under which the case proceeded to the Supreme Court.  The EPA argued that, at some undefined point in time, they might reconsider their demand to the Sacketts for compliance, even though the Sacketts risked double fines (up to $70,000per day) for not reversing their work on the land.

Justice Antonin Scalia scoffed at the argument in the decision writing that “the mere possibility that an agency might reconsider in light of “informal discussion” and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.”

Nor did Scalia and the other members of the court buy the notion that a compliance order was just “a step in the deliberative process … rather than a coercive sanction that itself must be subject to judicial review,” as the Obama administration argued.  Scalia points out that sanctions signal that deliberation has come to an end.  Besides, Scalia wrote for the unanimous majority, the Sacketts had tried to get a hearing with the EPA, which the agency rejected – hardly a sign that deliberation over the issue had much of a chance of continuing.

These arguments represent the arrogance of a bureaucracy that has little interest in oversight, and less in intellectual honesty.  The idea that a compliance order and its accompanying stratospheric fines don’t equal a final result only makes sense from the perspective of those giving the order.  It doesn’t take much common sense to see that a couple trying to build a home on land that didn’t even appear in the EPA’s inventory of wetlands could hardly afford to run up $70,000 in fines each day they didn’t act on a compliance order.

The best part of the opinion — it’s worth reading in its entirety, and not terribly long — came in response to the argument that offering due process on compliance orders would make the EPA less likely to use them.  Scalia noted wryly that Congress seems to have intended that under the EPA: “The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.”

The Obama administration’s argument boils down to the idea that due process and a legitimate appeal process for Americans challenged by agencies is too big a cost for the government, and it shouldn’t have to deal with oversight on its decisions.  Needless to say, that kind of argument won’t ever be popular with any court.  As I mention in the column, the court’s unanimous decision had to have come in part from the offensive notion that citizens were being extorted by massive fines to stay out of court at all.

If the EPA issues fewer compliance orders, well, no one will be crying much about that.  If the EPA has to justify its orders in court rather than just shove them down people’s throats with a threat of $70,000-per-day fines if they try to appeal, even better.  But far better than that would be to get Congress to rein in these agencies and an executive branch that seizes effective control of private property while arguing that no due process applies because efficiency trumps property rights.


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Ending
Productivity in
America.

itsnotaboutme on March 22, 2012 at 8:43 AM

The EPA is just one battlefront with this issue. The Army Corps of Engineers and the state level DEC is another.

matd on March 22, 2012 at 8:45 AM

The Obama administration’s argument boils down to the idea that due process and a legitimate appeal process for Americans challenged by agencies is too big a cost for the government, and it shouldn’t have to deal with oversight on its decisions. Needless to say, that kind of argument won’t ever be popular with any court.

I’m not so sure. If Obama gets to appoint a couple more tools to the Supreme Court, who knows what they will do.

novaculus on March 22, 2012 at 8:46 AM

I actually read a story by someone with actaul JournoListic training, who described this decision as a defeat for Obama.

As in the whole thing being about Obama.

Any plan for reducing government needs to start with the EPA.

MNHawk on March 22, 2012 at 8:46 AM

Justice Scalia is my hero!

WannabeAnglican on March 22, 2012 at 8:46 AM

We’ll only defeat the EPA when it is disbanded, its employees fired, its doors shuttered…

Forever.

Are there more terrifying examples of tyranny and government run amuck?

Probably. But this one is bad enough.

turfmann on March 22, 2012 at 8:47 AM

This is how they HAD to rule. Which gives me some hope for the Obamacare decision because it actually revolves around the same point: Is there any practical limit to government power?

In the Sackett case, if we have no right to contest an EPA Diktat, then the EPA is, in effect, a tyrant with unlimited power of judge, jury, and executioner, with no accountability whatsoever.

In the case of Obamacare, if the government can require us to purchase something just because we exist, then it can basically mandate anything without limit.

Similarly, the earlier 9-0 decision striking down government attempts to require religious institutions to hire, well, ANYONE as pastors, unrelated to their religion or religious principles was also a pushback against unlimited federal authority.

It is about time that a line was drawn around the government and it is told “no more”. This court hopefully will continue to do this.

wildcat72 on March 22, 2012 at 8:48 AM

Justice Scalia you are the man!

Big Orange on March 22, 2012 at 8:49 AM

“Epic Smackdown” vs. “It’s possible to overstate the impact of the Supreme Court’s unanimous decision yesterday on Sackett v EPA…”

Someone at Hotair needs to bone up on their editing skills.

CoolCzech on March 22, 2012 at 8:50 AM

I’m not so sure. If Obama gets to appoint a couple more tools to the Supreme Court, who knows what they will do.

novaculus on March 22, 2012 at 8:46 AM

All the more reason to kick is butt out of the WH this fall.

Good Lt on March 22, 2012 at 8:50 AM

The Obama administration’s argument boils down to the idea that due process and a legitimate appeal process for Americans challenged by agencies is too big a cost for the government, and it shouldn’t have to deal with oversight on its decisions. Needless to say, that kind of argument won’t ever be popular with any court.

I’m not so sure. If Obama gets to appoint a couple more tools to the Supreme Court, who knows what they will do.

novaculus on March 22, 2012 at 8:46 AM

Yep. Liberals worship government and will always favor it regardless of fact. If we get 2 more of them on the supreme court the Republic is finished.

Frankly I think that liberal judges should be impeached as unfit for office since they are incapable of upholding their oath.

wildcat72 on March 22, 2012 at 8:51 AM

It’s reassuring that this decision is unanimous; even the Wise Latina Herself apparantly has at least some respect for the Constitution.

CoolCzech on March 22, 2012 at 8:51 AM

Any plan for reducing government needs to start with the EPA.

MNHawk on March 22, 2012 at 8:46 AM

No, any plan for reducing government needs to start with the Dept. of Education. The EPA is a second-tier target along with reform of both the State Department and Justice Dept. where the entire “civil rights branch” needs to be fired and replaced with individuals who do not have an anti-white agenda.

Happy Nomad on March 22, 2012 at 8:51 AM

even the Wise Latina Herself apparantly has at least some respect for the Constitution.

CoolCzech on March 22, 2012 at 8:51 AM

Even the ancient vampire was onboard for this one.

Happy Nomad on March 22, 2012 at 8:52 AM

Game changer? I hope!

petefrt on March 22, 2012 at 8:53 AM

It is no victory until and unless the full costs of the lawsuit on both sides are assessed directly against the salaries of EPA bureaucrats who are responsible for the debacle. Until then, the citizens lose either way.

Archivarix on March 22, 2012 at 8:54 AM

It’s reassuring that this decision is unanimous; even the Wise Latina Herself apparantly has at least some respect for the Constitution.

You don’t get it man! This all a big ploy! A gigantic conspiracy! Don’t you see? Obviously the liberal justices didn’t really want to vote unanimous on this case and many others before it, they’re just doing it to trick everyone into trusting them and making themselves appear moderate, so they can have an excuse when they conspire to side with the Obama administration in the Obamacare hearings! Alex Jones told me so!

/s

theoddmanout on March 22, 2012 at 8:58 AM

the EPA needs to be brought to heel…the agency has been out of control ever since the Won’s election…what a surprise

thedevilinside on March 22, 2012 at 9:00 AM

It is no victory until and unless the full costs of the lawsuit on both sides are assessed directly against the salaries of EPA bureaucrats who are responsible for the debacle. Until then, the citizens lose either way.

Archivarix on March 22, 2012 at 8:54 AM

It is a huge victory in the sense that the EPA has lost their ability to rule by Diktat.

But what really needs to happen is the EPA itself be dismantled. If I were President, the three agencies that would be CLOSED the first day would be the EPA and BOTH DOE’s (education and energy).

wildcat72 on March 22, 2012 at 9:01 AM

After working in the private sector “environmental” industry for nearly 20 years, this is long, long, long overdue. This case elucidates what businesses have had to put up with for decades. Once EPA made the precarious move into hammering private citizens with their ridiculous fines the challenge was bound to happen eventually.

It is no victory until and unless the full costs of the lawsuit on both sides are assessed directly against the salaries of EPA bureaucrats who are responsible for the debacle. Until then, the citizens lose either way.

Archivarix on March 22, 2012 at 8:54 AM

Excellent point. That will probably take another 10 years to sort out, so I would hope that whatever legal jurisdiction handles the case also awards punitive liquidated damages to the plantiff.

Mr Galt on March 22, 2012 at 9:02 AM

Any plan for reducing government needs to start with the EPA.

MNHawk on March 22, 2012 at 8:46 AM

…there you go! And like others have said…give JugEars a chance to put a couple of more on the bench…the others won’t have to think with any sanity.

KOOLAID2 on March 22, 2012 at 9:03 AM

the EPA needs to be brought to heel…the agency has been out of control ever since the Won’s election…what a surprise

thedevilinside on March 22, 2012 at 9:00 AM

Well, I would have to disagree, at least partially. True they have gotten much worse, but they have ALWAYS been totally out of control.

Mr Galt on March 22, 2012 at 9:04 AM

But far better than that would be to get Congress to rein in these agencies and an executive branch that seizes effective control of private property while arguing that no due process applies because efficiency trumps property rights.

Rein in, Ed? No. Eliminate it.

Maybe one of these days Ed, et al. will come down on the side of the Constitution instead of Big Government. I still can’t believe Jazz Shaw said paying the TSA $100 is long overdue.

You would think a “conservative” site’s default positions would be Constitutional. No, Big Government is king.

Dante on March 22, 2012 at 9:04 AM

I’m not so sure. If Obama gets to appoint a couple more tools to the Supreme Court, who knows what they will do.

novaculus on March 22, 2012 at 8:46 AM

All the more reason to kick is butt out of the WH this fall.

Good Lt on March 22, 2012 at 8:50 AM

.
SCOTUS appointments are THE reason to vote Republican this November, whether you like the nominee or not.
The next President will most likely get to appoint two (2) replacements next term.

listens2glenn on March 22, 2012 at 9:05 AM

It is a huge victory in the sense that the EPA has lost their ability to rule by Diktat.

But what really needs to happen is the EPA itself be dismantled. If I were President, the three agencies that would be CLOSED the first day would be the EPA and BOTH DOE’s (education and energy).

wildcat72 on March 22, 2012 at 9:01 AM

A victory, yes. But I suspect the EPA will continue to bully citizens exactly as it has always done. Unless they can afford a lawyer.

The only real solution is to remove the agency’s rule-making authority. Of course, shutting it down would do that.

novaculus on March 22, 2012 at 9:07 AM

And Barack’s EPA is going to just go along with this?

SouthernGent on March 22, 2012 at 9:08 AM

I look for the sleaze angle in these type affairs.Maybe some local EPA employee had their eye on this lot.I have seen this sort of thing happen in Texas.The lot was declared a wetland when it’s not even on a EPA list.How convenient.

docflash on March 22, 2012 at 9:10 AM

The only real solution is to remove the agency’s rule-making authority. Of course, shutting it down would do that.

novaculus
on March 22, 2012 at 9:07 AM
.
Yes.

If we can do that retroactively, better yet.

listens2glenn on March 22, 2012 at 9:10 AM

the court’s unanimous decision

Wow…that’s a nice surprise.

lynncgb on March 22, 2012 at 9:11 AM

which means that a Congressional repeal of the APA could undo Sackett, at least temporarily

Would never happen. That would essentially destroy every federal cabinet department (and their sub groups) and independent agencies.

rbj on March 22, 2012 at 9:12 AM

9-0 decision

Potatoes:1 Potato Head:0

hillsoftx on March 22, 2012 at 9:13 AM

The elegant sarcasm of Antonin Scalia is always a delight to read.

And both the EPA and the Ninth Circus being reversed 9-0, awesome!

Wethal on March 22, 2012 at 9:13 AM

When the EPA knocks on your door, there’s no difference between them and the WWII Nazis taking conscripts.

bloviator on March 22, 2012 at 9:14 AM

Score one for the good guys.

magicbeans on March 22, 2012 at 9:14 AM

If you want to know why the price of gasoline is $4.00 ++ a gallon, look no further than this case. The arrogant EPA, little people with giant authority, have harassed oil companies in the same manner they bullied this poor couple. This is why the current GAS PRICES ARE 100% OBAMA’S FAULT.

This is also what happens when Ivy League theoreticians are allowed out of their padded cells to dictate policy.

MaiDee on March 22, 2012 at 9:15 AM

The next President will most likely get to appoint two (2) replacements next term.

listens2glenn on March 22, 2012 at 9:05 AM

But those nutballs claim Romney will be just as bad when it comes to appointing justices.

They would prefer to destroy the country instead of put off their quest for ideological purity.

cozmo on March 22, 2012 at 9:15 AM

And Barack’s EPA is going to just go along with this?

SouthernGent on March 22, 2012 at 9:08 AM

Probably not.

Has there ever been a case of someone held in contempt of court by SCOTUS? This might be the first time. I don’t see Barry or the EPA giving up without a fight, the ability to confiscate property via the EPA Diktat is one of government’s favorite power abuses.

wildcat72 on March 22, 2012 at 9:17 AM

Any plan for reducing government needs to start with the EPA.

MNHawk on March 22, 2012 at 8:46 AM

Very true, but the moment someone proposes it we’ll hear screams that the GOP doesn’t care about the environment. Ironically, from what I’ve witnessed, although state EPAs can be pretty abusive, they do a much better job on-balance than the Feds (much much better). This is a function that could be very reliably delegated to the states.

Mr Galt on March 22, 2012 at 9:18 AM

In its editorial on this decision, the WSJ noted that the EPA has 17,000 enforcement agents.

The EPA is far worse than any concerns about the IRS. Why are Americans paying a high wage and benefits to 17,000 people intent on terrorizing us?

You know the EPA is out of control when it loses 9-0.

BuckeyeSam on March 22, 2012 at 9:21 AM

Damn Activist Judges! Newt would be so proud!

RanchTooth on March 22, 2012 at 9:22 AM

comments aren’t working on the rubio post.

dbilly76 on March 22, 2012 at 9:22 AM

Damn Activist Judges! Newt would be so proud!

RanchTooth on March 22, 2012 at 9:22 AM

I don’t think saying that citizens have a right to appeal/contest a legal decision in court is “activist” – it’s the basis of common law.

Mr Galt on March 22, 2012 at 9:27 AM

I don’t think saying that citizens have a right to appeal/contest a legal decision in court is “activist” – it’s the basis of common law.

Mr Galt on March 22, 2012 at 9:27 AM

One wonders how the EPA has been allowed to conduct this regulatory reign of terror unchecked for DECADES now given the obviousness of this decision. The Constitution guarantees all citizens the right to due process. The Bill of Rights is very clear about prohibiting the arbitrary federal seizure of property.

Every corporation that has been targeted by the EPA has just bent over and taken it in the pants instead of challenging them.

I guess in their arrogance the EPA finally went after individuals who were backed into a corner with no option but to fight. I wonder how many other federal power abuses fall within the same class?

What is clear is now that EPA Diktats are no longer immune to challenge is that there will be FEWER OF THEM, and the ones they do will be better thought out. Which is a good thing.

wildcat72 on March 22, 2012 at 9:35 AM

Mr Galt on March 22, 2012 at 9:27 AM

What do you expcet? This nutball probably thinks the Roe decision is good law.

cozmo on March 22, 2012 at 9:37 AM

Unless I’m reading the decision incorrectly, this isn’t over yet. The admin (EPA) lost their case that their determination on the Sackett property could not be judicially reviewed–but I don’t think the court ruled the EPA’s determination undone. I think the Sacketts now have to go to court to get the EPA compliance order thrown out. . .but that is still time, money, and angst for them.

If you like what Scalia wrote, you should REALLY read Alito’s concurring opinion. Only three pages in length, Alito notes not only the tenuous and limited reprieve granted in Sackett but also notes the real reason we’re here at all: Congess didn’t do its job well and has continued to be negligent on this issue.

johnny alpha on March 22, 2012 at 9:38 AM

I am feeling a little hope over that Obamacare hearing that is coming. The Supremes don’t seem to be in the mood for more beuracratic nonsense.

bitsy on March 22, 2012 at 9:40 AM

You would think a “conservative” site’s default positions would be Constitutional. No, Big Government is king.

Dante on March 22, 2012 at 9:04 AM

Tell us again how that shooter in France wasn’t allied with al Qaeda.

Del Dolemonte on March 22, 2012 at 9:41 AM

.SCOTUS appointments are THE reason to vote Republican this November, whether you like the nominee or not.

The next President will most likely get to appoint two (2) replacements next term.

listens2glenn on March 22, 2012 at 9:05 AM

A minimum of 2. Probably 3. That would put away the Conservative Cause for generations, if not forever.

“But I’m going to vote for O’bama anyway, because I Hate Romney!”

/angryed

Del Dolemonte on March 22, 2012 at 9:43 AM

“But I’m going to vote for O’bama anyway, because I Hate Romney!”

/angryed

Del Dolemonte on March 22, 2012 at 9:43 AM

And that nutball ain’t alone.

cozmo on March 22, 2012 at 9:47 AM

Newt would have fired every one of the power mad bureaucrats in the Federal Government. I’m afraid that we’ve missed our chance to unravel much of the imperial federal government by electing yet another RINO to run against a socialist. What will it take for the people of this country to learn?

cajunpatriot on March 22, 2012 at 9:47 AM

I don’t think saying that citizens have a right to appeal/contest a legal decision in court is “activist” – it’s the basis of common law.
Mr Galt on March 22, 2012 at 9:27 AM

The lefty is just clumsily trying his hand at sardonic humor to hide his disappointment that there’s been a temporary glitch in an all controlling state.

Dr. Carlo Lombardi on March 22, 2012 at 9:52 AM

No, any plan for reducing government needs to start with the Dept. of Education. The EPA is a second-tier target along with reform of both the State Department and Justice Dept. where the entire “civil rights branch” needs to be fired and replaced with individuals who do not have an anti-white agenda.

Happy Nomad on March 22, 2012 at 8:51 AM

Amen!

Bulletchaser on March 22, 2012 at 9:55 AM

Ed, I believe your caption should read “Game changer on administrative law?” as opposed to “Game changer on agency law?”.

Agency law deals with the legal relationship between principals and agents (e.g., under what circumstances a principal is liable for the actions of his agent). Just FYI.

lawya on March 22, 2012 at 9:56 AM

EPA acting dictatorial? What a surprise.

Our Founding fathers created by the Constitution a nation where all legislative power is ‘vested’ in Congress, the laws Congress passed were subject to Presidential approval, and that Congress could, at any time, review prior law and vote to repeal it. Even more importantly, the Founding Fathers provided that each Congressman voting for or against the laws was directly subject to the ballot box. We no longer live in that world.

Today, Congress is not the sole source of our legislation. Indeed, it is very far from even being the most important source of our legislation. Our nation now most clearly resembles the socialist regulatory bureaucracy of the EU, where mountains of regulations with the full force and effect of law are passed by unelected bureacrats. In our nation today, individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and jailed for violating federal regulations that have never been subject to a vote by our elected representatives, nor signed into law by the President. Even worse, regulations are like super-laws, never subject to review and repeal by Congress. The genius of our Constitutional system of checks and balances is wholly obliterated in the tyranny of the regulatory bureaucracies.

At any rate, color me cynical, but this decision on the EPA is just a small victory at the far margins. The Supreme Court long ago made a nullity of Art. I, Sec. I of the Constitution.

Wolf Howling on March 22, 2012 at 9:59 AM

It’s reassuring that this decision is unanimous; even the Wise Latina Herself apparantly has at least some respect for the Constitution.

CoolCzech on March 22, 2012 at 8:51 AM

I think the Wise Latina knows she is dwarfed by the intellectual giants on the right. She has enough respect for the role of the Court to not disagree when there is no victory to be found, even for someone with so rich a life history as she has.

rwenger43 on March 22, 2012 at 10:03 AM

an executive branch that seizes effective control of private property while arguing that no due process applies

Ed,

Since we have an administration that has shown every willingness to impose administrative rules via EO’s, effectively going around congress numerous times, why would they care now what SCOTUS says?

Difficultas_Est_Imperium on March 22, 2012 at 10:05 AM

A nice SMALL victory over the EPA. There are still numerous battles the EPA is winning at against us. Let alone the war that is being waged at American citizens by the aggressors of the EPA each and every day.

Conservative4Ever on March 22, 2012 at 10:07 AM

Sounds to me like you NASCAR fans want to go back to the days of drinking dirty water and breathing dirty air, while working 800 hours a week in the coal mines.

/libtardurban4freedeadoralive

CurtZHP on March 22, 2012 at 10:15 AM

Happy Nomad on March 22, 2012 at 8:51 AM

Agreed and well said.

exlibris on March 22, 2012 at 10:21 AM

Tell us again how that shooter in France wasn’t allied with al Qaeda.

Del Dolemonte on March 22, 2012 at 9:41 AM

I never said that even once, so I could I say it again?

Dante on March 22, 2012 at 10:22 AM

Should read: so how could I say it again

Dante on March 22, 2012 at 10:22 AM

I never said that even once, so I could I say it again?

Dante on March 22, 2012 at 10:22 AM

But, the important thing is, does he agree with you on birtherism?

cozmo on March 22, 2012 at 10:26 AM

As with most every other federal bureaucracy, once well-ensconced in their power and authority, they not only won’t bow out, they’ll raise hell when neutered.
Sadly, this particularly thuggish “administration” is 100% antithetical to America and that for which she stands – That would be “Freedom“, Lefties.

King Barack the Growth Slayer will soon lose the IRS, et al., as his own “jack-booted thugs” have become more a liability than an ally. That is if and when the American people pay attention to what’s happening around them. But then, television made Barack Obama. Sadly, it shows no signs of penance yet.

Throw da bums out
~(Ä)~

Karl Magnus on March 22, 2012 at 10:28 AM

This ruling is actually a VERY big deal.

Most of these compliance orders are issued against large corporate landowners. The fines are huge in order to make it very costly for a landowner to resist the order. Because there was formerly no avenue for judicial review of these orders, companies usually complied immediately, whether they believed the EPA was right or not, because of the potential fines involved. So EPA could very quickly get the results it wants.

The reason the EPA fought this case all the way up to SCOTUS is because it knows that companies with deep pockets have the resources to challenge compliance orders and keep the EPA tied up in court with them for months. Environmental groups also feared this ruling because getting the EPA to issue a compliance order has been the quickest and easiest way for them to stop developments they don’t like.

I would look for EPA to finally do a rulemaking on this now. It has the authority to issue a regulation that defines compliance orders as non-final actions and creates a Potemkin review process that will take the Administrative Procedures Act out of the equation. The fight isn’t over, but at least the Sacketts will probably get to build their house.

rockmom on March 22, 2012 at 10:29 AM

Wow. A Supreme Court decision based on actual principles of law instead of party politics.

Whodda thunk?!?

KMC1 on March 22, 2012 at 10:33 AM

Unless I’m reading the decision incorrectly, this isn’t over yet. The admin (EPA) lost their case that their determination on the Sackett property could not be judicially reviewed–but I don’t think the court ruled the EPA’s determination undone. I think the Sacketts now have to go to court to get the EPA compliance order thrown out. . .but that is still time, money, and angst for them.

If you like what Scalia wrote, you should REALLY read Alito’s concurring opinion. Only three pages in length, Alito notes not only the tenuous and limited reprieve granted in Sackett but also notes the real reason we’re here at all: Congess didn’t do its job well and has continued to be negligent on this issue.

johnny alpha on March 22, 2012 at 9:38 AM

True. The Clean Water Act is one of the worst-written laws in the entire federal code. Not only does it not define “waters,” it doesn’t clearly define the EPA’s actual powers in regulating water pollution. Most CWA law is case law, and many of the cases have been brought by left-wing environmental groups just to push the envelope of government power over private property owners.

EPA was stupid and arrogant to go after the Sacketts.

rockmom on March 22, 2012 at 10:33 AM

The fact that we are seeing so many unanimous decisions come down from the Supreme Court, and not on minor cases but actually on major issues, is a testament to just how radical the Obama administration is and how little respect it has had for the rule of law.

Shump on March 22, 2012 at 10:34 AM

Chief Justice Roberts deserves credit for finding common ground. 9-0 decisions don’t come easy in this partisan era. He spoke out for Kagan and Thomas, he is changing the direction of the Court. The Court will cease to be meaningful if the most divisive issues of the day are decided by razor thin margins. A 5-4 ObamaCare decision would not enhance the standing of the Court or even do much to settle the issue, but a 9-0 decision would speak loud and clear, and be a powerful assertion of the third branch’s authority.

Greek Fire on March 22, 2012 at 10:37 AM

“oh, if only we could be like (Red) China for a day! The things we could accomplish!”

GarandFan on March 22, 2012 at 10:46 AM

What the next Republican administration needs to do is find people like the Sacketts, that have been raped by a government department, and put them in charge of that department. Make Sackett the head of the EPA, assuming he has some managerial experience.

Ditto Education, Energy, FAA, FCC, BATF, DEA, etc, etc.

“If you have been abused by a department of the US government, we may have a job for you.”

slickwillie2001 on March 22, 2012 at 11:05 AM

Just throwing us a bone before they shove Obamacare/Communism/Oligarchy down our throats.

jeffersonschild on March 22, 2012 at 11:22 AM

Victory

This is a start.

This give courage to fight the EPA and confront the bully

seven on March 22, 2012 at 11:26 AM

The Obama Administration prefers to negotiate only when they can hold a gun to citizen’s heads.

Socratease on March 22, 2012 at 11:27 AM

Needless to say, that kind of argument won’t ever be popular with any court.

Seemed pretty popular with the 9th.

besser tot als rot on March 22, 2012 at 11:37 AM

The court’s opinion “is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem,” Alito said.

Alito nails exactly what is wrong with Congress.

ObamaCare is the most egregious example of Congress punting their duties to a regulatory agency overseen by the Executive Branch and bureaucrats that have more and more power. In fact, bureaucrats that have become so powerful they feel they don’t even have to answer to Congress any more.

Congress needs to do it’s job and quit being lazy.

Get rid of the vague language in legislation and be specific. Instances of “the Secretary shall” in legislation should be the exception, not the rule.

ButterflyDragon on March 22, 2012 at 11:40 AM

Justice Scalia is my hero!

WannabeAnglican on March 22, 2012 at 8:46 AM

Justice Scalia you are the man!

Big Orange on March 22, 2012 at 8:49 AM

If you think Scalia’s your hero, listen to Alito during oral arguments–he POUNDED the EPA.

Maddie on March 22, 2012 at 11:50 AM

Lest we forget, this is the same EPA that over much public objection unilaterally decreed CO2 to be a pollutant harmful to the atmosphere. The logical extension of which means, if the EPA were to get its way with rule by fiat, that breathing Americans could someday be subject to the whims of an unelected, unaccountable bureaucrat enforcing pollution controls. Which is a not-too-distant jump to Logan’s Run-style eugenics. Or abortion for that matter. If I’m mistaken in making that jump, I’d love to hear the counter-argument.

Actually, now that I think about it, such pollution controls would be a great way to keep health care costs down…and a great adjunct to the ObamaCare death-panels-that-are-not-death-panels too! /s

And only slightly off-topic, wasn’t esteemed Science Czar John Holdren one of the authors of ‘Ecoscience,’ that advocated mass forced sterilizations to control for overpopulation?
I’m just saying, there seems to be a common theme among these lefties in seeking absolute control over life and death.

I agree with the commenter above, this ruling is a huge loss for 0′s administration, given the stated intent to bypass Congress and rule by diktat. Hard to do when your diktat’s subject to judicial review – if you intend to abide by court rulings, that is…

Right on March 22, 2012 at 11:53 AM

If the next president is serious about getting this country back on track, ending the EPA in its current form should be on the top of his list. And the clean house at the Department of Energy. The unimaginable arrogance of the bureacrats in these agencies is mind boggling.

Tomolena1 on March 22, 2012 at 11:54 AM

I was particularly impressed with the part of the compliance order that spoke of ‘navigable waters’ on their property when in reality, the only water on the property was mud puddles after a rain…It appears the agency thought they could pretty much say and do whatever it wanted regardless of reality or the 5th Amendment.

JIMV on March 22, 2012 at 11:55 AM

True. The Clean Water Act is one of the worst-written laws in the entire federal code. Not only does it not define “waters,” it doesn’t clearly define the EPA’s actual powers in regulating water pollution. Most CWA law is case law, and many of the cases have been brought by left-wing environmental groups just to push the envelope of government power over private property owners.

EPA was stupid and arrogant to go after the Sacketts.

rockmom on March 22, 2012 at 10:33 AM

It is only “one of the worst-written laws” in the eyes of folks who believe in liberty and due process of law. In the eyes of government agencies such as the EPA, it is brilliantly written.

climbnjump on March 22, 2012 at 11:57 AM

Well let’s us hope that the whole United States Congress will sit up and take notice of this decision!!

The Supreme Court has just sent the Congress a direct unambiguous message, and told them to take their Constitutional authority BACK from these heinous, horrific, unconstitutional agencies (like EPA,FDA, OSHA etc) that are running A MUCK brazenly destroying American freedoms and American way of life with their hideous leftist socialist agendas.

BigSven on March 22, 2012 at 12:22 PM

I’m glad it was unanimous but it’s only one small victory. Lots to do left. There’s nothing more insulting to taxpayers than a bureaucracy that believes it can ignore the citizens they were created to serve!

Bob in VA on March 22, 2012 at 12:23 PM

Strange how a document written by old rich white guys lasts through the generations while an affirmative action politician with his hope and change drivel will be quickly forgotten.

Smedley on March 22, 2012 at 12:28 PM

YEAH, BABY!

locomotivebreath1901 on March 22, 2012 at 12:28 PM

If the EPA issues fewer compliance orders, well, no one will be crying much about that.

This is where you are wrong, Ed.

Environmentalists don’t care about rules and law when it comes to implementing their “No Humanz Allowed!!1!” policy, and they see brutal and inescapable orders from the EPA as a fantastic tool for wreaking havoc among the human population of the US. Especially since now, the most extreme wing of the Green movement has taken over the EPA under Obama.

They’d just love it if the EPA essentially became this nation’s Stasi, paralyzing the populace with fear of irrational commands-from-on-high, disobeyance of which is swiftly punished.

So, actually, a lot of people will be crying if the EPA isues fewer compliance orders.

Zombie on March 22, 2012 at 1:07 PM

Great summary, Ed, and absolutely agreed on your whole final paragraph. How sad that the courts are the people’s refuge on this matter, instead of Congress. Government is simply way too big.

J.E. Dyer on March 22, 2012 at 1:07 PM

If nothing else, this will certainly cause an increased budget request for “Litigation” at the EPA.

If Congress was smart, this line item would zeroed. You can’t defend in court if you don’t have the funding to do so.

BobMbx on March 22, 2012 at 1:07 PM

More unanimous court decisions against executive overreach. It’s beginning to look like Obama is following in the footsteps of FDR after all.

tom on March 22, 2012 at 1:13 PM

If you like what Scalia wrote, you should REALLY read Alito’s concurring opinion. Only three pages in length, Alito notes not only the tenuous and limited reprieve granted in Sackett but also notes the real reason we’re here at all: Congess didn’t do its job well and has continued to be negligent on this issue.

johnny alpha on March 22, 2012 at 9:38 AM

Yeah. Pretty good stuff.

A few quotes:

Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on alot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.

Not so sure, anymore about this next one:

In a nation that values due process, not to mention private property, such treatment is unthinkable.

(Maybe, under the current SCOTUS.)

Finally, what johnny was on in his comment:

When Con- gress passed the Clean Water Act in 1972, it providedthat the Act covers “the waters of the United States.” 33
U. S. C. §1362(7). But Congress did not define what itmeant by “the waters of the United States”; the phrasewas not a term of art with a known meaning; and the words themselves are hopelessly indeterminate.

When the idiots on Capitol Hill pass laws without the necessary specificity, it gives unelected bureaucrats a green light to trample on the citizen’s rights.

RedCrow on March 22, 2012 at 1:17 PM

Any plan for reducing government needs to start with the EPA.

MNHawk on March 22, 2012 at 8:46 AM

Very true, but the moment someone proposes it we’ll hear screams that the GOP doesn’t care about the environment. Ironically, from what I’ve witnessed, although state EPAs can be pretty abusive, they do a much better job on-balance than the Feds (much much better). This is a function that could be very reliably delegated to the states.

Mr Galt on March 22, 2012 at 9:18 AM

If we could get a strong conservative President (HA!), my approach would be to issue an Executive Order… as head of “administration”, it is within the President’s authority to relocate the administration buildings. For the EPA to be close to the nature they so dearly wish to preserve, relocate the department to Prudoe Bay, Alaska… with no provision for moving expenses, housing, etc… and watch the department “mysteriously” evaporate overnight.

dominigan on March 22, 2012 at 1:21 PM

EPA — the gift that keeps on taking, opposing American progress since 1970.

Nixon is remembered for Watergate, but the EPA is by far his biggest blunder.

infidel4life on March 22, 2012 at 1:30 PM

More proof that the “green” being sought by government is in YOUR WALLET!!! All the rest is just an excuse.

landlines on March 22, 2012 at 1:33 PM

The SCOTUS’ unanimity on the case is beyond rare; most decisions fall along ‘party’ lines regardless of the merits of the case,as we all know. If the government had managed to keep this strictly a 5th Amendment case, for instance – while the decision might have been the same – the unanimity would have gone away pretty quickly, IMO.

Many have justifiably praised Justice Scalia in the above comments, but, God forbid, if he were to pass away tomorrow, many decisions of this kind would eventually start going the other way. For this reason alone I will vote for any Republican, even a RINO ne plus ultra like Romney, over any Democrat for president.

That doesn’t mean I’ll like having to vote for Mitts should it come to that, not the least of which because his history makes him look like a justice Souter nomination disaster looking for a place to happen.

Knott Buyinit on March 22, 2012 at 1:44 PM

Just think of the blow to the federal despots if this argument and ruling could be extended to the IRS.

Portia46 on March 22, 2012 at 2:40 PM

>Even the ancient vampire was onboard for this one.

Even Darth Vader Ginsburg!

KorlaPundit on March 22, 2012 at 2:45 PM

This is such a great decision, my pants have been declared a Wetland.

KorlaPundit on March 22, 2012 at 2:46 PM

WOOHOO! This should be a taste of the ruling 0bama will suffer when they decide on 0bamaScare.

This also provides another reason for why We Must NOT allow a Lying LIBERAL like RonMe to be our next POTUS.

DannoJyd on March 22, 2012 at 3:02 PM

So those EPA lawyers who defended the agency’s position in court – how do they get the taste out of their mouths, after spewing buckets of Occupy Protest logic? Is there like a rinse or spray you can use for that? If so, the Obamacare barristers will probably want it too…

Marcola on March 22, 2012 at 4:21 PM

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