Monday, March 26, 2012

Justice Actually Can Prevail

The monster that is the Environmental Protection Agency has just received a big slapdown from the United States Supreme Court. The EPA, using its huge resources, entrenched bureaucratic mentality, seemingly endless ability to spend the taxpayers money and determination that it is a law unto itself lost a true David versus Goliath battle. A family which refused to be intimidated by Leviathan won.

I’ve written on this topic twice before, each time with the hope that this brave couple, Mike and Chantell Sackett would be able to fight on until they won their battle to re-establish the very American proposition that your land belongs to you, not to the federal government and a gaggle of environmental fascists. You can review the underlying facts of the case here: Sacketts vs EPA. So this post is actually more celebratory than the previous two.

In a nutshell, the case involves a small parcel of land which the Sacketts had purchased so they could build their dream home in the Priest Lake region of Idaho. After pulling all the proper permits and complying with all environmental regulations imposed by the local, regional and state authorities, the Sacketts began to build. After the Sacketts had graded the land, laid the foundation for the house and erected some of the walls and support structures, the EPA came in, ordered the construction to halt forthwith, and ordered the Sacketts to dismantle what construction had been done and return the land to its natural state as a protected wetland.

The idea that the land was a protected wetland came as a total surprise to the Sacketts and every agency involved except the EPA. The “wetland” amounted to a small portion of the property, not much more than a puddle, which had only come to exist as the result of an unusually wet winter and spring. It hadn’t been there before or during the permit process, and left alone, would dry up on its own eventually. No wetland flora or fauna had yet discovered the puddle. It takes the sharp eye of an EPA bureaucrat to locate such obscure ecological marvels.

This was another example of ecoweenies and federal bureaucrats finding a “problem” to act on in order to make sure that their power intimidates both the objects of the protection orders and anyone else who might dare to think of building on or near the same location. Why is it suddenly a protected wetland? The EPA’s response was “because we say it is.”

What was determined in the Supreme Court decision is that the EPA (and by inference, other federal alphabet agencies) may not prevent injured plaintiffs from challenging the power of the agency early in the proceedings. In order to win by intimidation, the EPA had issued what is called a “compliance order.” Such an order requires that the victims of that order must first comply with all the terms of the order before attaining standing to sue the agency for a reversal of the order. For a family of moderate means, that is a near impossibility.

The Sacketts would have had to pull down all the construction done so far, including re-grading the land to put it back into its “natural state.” Then, and only then, they would have been allowed to challenge the EPA’s determination that their land was a protected wetland. Assuming they won the subsequent suit (no sure thing), they would then be able to start construction all over.

As an additional bullet in the head of the Sackett’s dreams, refusal to obey the compliance order would mean they could spend their limited funds on reversing the construction, then hiring counsel to sue just to get back where they started or pay daily fines of $37,500 until they did comply. The Sacketts chose not to comply, and after unsuccessful appeals, their fines had reached nearly $1 million by the time the case got to the Supreme Court.

The argument in court revolved around the nature of the compliance order, with the issue of the questionable wetlands determination a secondary issue. The EPA contended that a compliance order is only one step in ongoing litigation to make that determination. The Sacketts argued the opposite. And the high court agreed with the Sacketts. Speaking for the unanimous court, Justice Antonin Scalia wrote that the Sacketts had the right to sue to overturn the compliance order rather than obey it at their own expense and litigate further later.

Scalia reviewed the Administrative Procedures Act on which the EPA relied, and found that a compliance order such as the one in this case is so onerous that it comprises a final order, complete with monetary fines. The order requiring the Sacketts to restore the property to its original condition was therefore subject to immediate judicial review, both under the Administrative Procedures Act and the Clean Water Act.

No need for a private citizen to bankrupt himself complying with the order before suing to overturn the agency decision only to get back to where he was in the first place before the arbitrary and crippling order was entered. Scalia added: “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”

Justice Samuel Alito also suggested that Congress amend the Clean Water Act, the Administrative Procedures Act, and similar bureaucratic legislation in a way that would clearly and affirmatively define the limitations of compliance orders while at the same time preventing more arbitrary and capricious actions by federal agencies effectively quashing the right of private citizens to seek redress in the courts at the earliest possible time. Said Alito: “The Court’s opinion is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

The attorney for the Sacketts argued before the Justices that the EPA (and by inference, any other federal agency) is not above the law, nor does any such agency have the right to prevent private citizens from seeking legal redress against the agency when those citizens reasonably believe they are being treated unfairly. He further argued that private citizens should not be required to suffer crippling sanctions without being able to petition the courts to grant redress and protect private property rights pending further litigation. The Supreme Court unanimously agreed.

Although this was an important and unanimous decision, caution must be advised before determining that this battle won a war. The EPA doesn’t like being told it has limited powers, and under this administration at least, it’s likely that it ain’t over ‘til it’s over. Justice Ruth Bader Ginsburg wrote a concurring opinion which pointed out that the underlying issue of whether the Sackett’s property is or is not a protected wetland is not being determined by this Supreme Court decision.

The decision is limited to the right of a private citizen to challenge a compliance order without first having to comply with it. In other words, big government-friendly Ginsburg wanted the EPA to know that she, Justice Sotomayor and perhaps one other Justice might very well be amenable to accepting their determination that the Sackett’s property is in fact a protected wetland if the case should make its way back to the Supreme Court on that issue alone.

I’ll take my victories where I can find them. This was a major limitation placed on the power of irresponsible poorly-monitored federal agencies to harass, intimidate and threaten private citizens into surrendering to unjust federal authority. In order to win the final battle and ultimately the war, Congress must act to severely restrict the now nearly-unlimited powers of the EPA to declare private property off-limits to the citizens who own it. Now you have another reason to elect a conservative Republican majority to Congress in the upcoming general election, as well as kicking The One out of the White House.


Jocelyn said...

I read about this and was so excited to hear that the Sacketts won. Congrats to them.

AndrewPrice said...

Glad to hear the result. In truth, the courts have been getting better for decades now that we've finally been running out of LBJ-Carter appointees. And this particular Supreme Court has proven to be quite solid as returning the legal system to rationality.

T-Rav said...

Thank God. The idea that a handful of bureaucrats could exercise this much power is, to say the least, extremely disturbing.

Unknown said...

Jocelyn: They deserve their victory, now let's hope they win back at the initial stage of getting the permits to build. The EPA and its fascistocrats don't take well to being told they're wrong. Any decent agency made up of real human beings would simply let them go forward. But the EPA doesn't know the meaning of common decency.

Unknown said...

Andrew: I hope cases like this get the attention of people who aren't normally court-watchers. It emphasized just how important it is that we elect a Republican President and Congress, given the possibility of as many as three or four retirements on the high court in the coming four years. Scalia seems to be in fine health, but he's not exactly a spring chicken. Ditto for Kennedy and Breyer. Ginsburg looks like she's already on her last legs.

Unknown said...

T-Rav: Indeed. This is one small victory in the battle to stop the liberals from ruling by fiat instead of by consent of the governed.

CrisD said...

...and Ginsberg was at it today with her opinion about whether or not we could decide that Obamacare was an Obamanation YET or not.

This couple DID THE RIGHT THING. When you are wronged by ruling OR by process, it is important to speak up and get on the record so that your fellow citizens are not trampled upon. I feel I have been too silent in the last 30 years and liberals have gotten away with murder! Kudos to this couple for their brave battle (money on the line!!)

Joel Farnham said...


Good. Now, the new Congress should address whether or not the EPA deserves to exist. I say it doesn't.

Tennessee Jed said...

Hawk - great news and great post. I agree, a win is a win and we take them whenever they occur. I do not have a lot of Christian charity for eco-weenies.

Unknown said...

Cris: The law can be complicated. I think Ginsburg is wrong, but there is a principle for appellate courts deciding on the validity (or lack thereof) of a law. In order for a case to be heard, it must be what we call "ripe" for litigation. If no harm has been done yet, the matter before the court is not yet a "case or controversy." Ginsburg may be trying to milk that principle for all it's worth, but it's not as crazy as many of the other things she has written. I'm just hoping that the other Justices don't agree with her.

I'm with you in praising the Sacketts. They took a huge risk, but they knew they were right and that the EPA was being oppressive. They took their stand and the worst the government could throw at them. There aren't enough people like them around these days.

Unknown said...

Joel: I'm with you in spirit. Unfortunately, the courts will have to chip away at the edges, since the existence of the EPA itself is a political question which the courts are not supposed to interfere with. Now we can hope that a new Republican administration and Congress will gut the monstrosity or get rid of it entirely, but I'm still waiting for the 1994 promise to eliminate the Department of Education to be fulfilled.

Unknown said...

Tennessee: Thanks. The EPA is only one of many examples of a good idea morphing into an oppressive bureaucracy. At its early stages, the EPA did a lot of good, particularly in the area of pollution. But within only a few years it had outlived its usefulness and become just another instrument of government interference in everyday American life. From cleaning up toxic waste dumps and cleaning up polluted rivers it has devolved into finding puddles on private land and declaring a naturally occurring gas poisonous so they can regulate it and grab another huge portion of the economy. And then there's that damned Delta smelt destroying California's agriculture.

rlaWTX said...

"kicking The One out of the White House"
ahhh, such a sweet dream...

Yay for the Sacketts! Yay for the SCOTUS!

I still say that the EPA would have been in BIG trouble if they had tried this with Jubal or Tell Sackett (Louis L'Amour)... [am I the only one who grew up reading these???]

CrisD said...

Tx, LawHawk,
As usual, my questions are answered by the posting --if not by your wonderful responses to comments! Glad we have you to wade through the healthcare/SCOTUS with...


Unknown said...

rlaWTX: At times that dream is the only thing that keeps me from giving up on politics and politicians entirely.

And you're not alone. I was an avid L'Amour fan from the time I read Hondo in the 50s. I have to admit I read it after seeing the movie, which had two irresistible elements--John Wayne and 3D. The following generation may have gotten a taste of L'Amour from the TV miniseries.

Interesting trivia: L'Amour's actual birth name was LaMoore.

Unknown said...

Cris: Glad to do it. It's proof that the only thing better than a good answer is a good question. LOL

T-Rav said...

I say we demand elimination of

1. DOE
2. EPA
3. HUD

And after that, any other acronyms that come to mind.

Unknown said...

T-Rav: That's a good beginning. I would also immediately include HHS. And while we're at it, how about the Dept. of Agriculture, the Dept. of Commerce, and the Dept. of Labor?

Kit said...

Remember, this, the the Environmental Protection Agency, is the same group of government bureaucrats who, because of either their reckless pursuit to squash any private enterprise they deem "hazardous" to the environment or a simple desire to show off their near-unlimited power, came very close to accidentally bringing about the End of the World.

Or at the very least makng it harder to stop.

Unknown said...

Kit: Thanks for the laugh. I had almost forgotten that scene. Is the reddish pink stuff shooting through the roof the spirit of CO2, loosed by no less than the EPA?

Here's a clickable link: EPA Unleashes Hell.

StanH said...

This is a classic case of a beauroacracy justifying their existence. Like Joel said, this is one of many alphabet agencies that need to be eliminated.

Unknown said...

Stan: That's the problem with almost all bureaucracies. They start out well, with a genuine mission. Once the mission is accomplished, they have nothing to do. So they create things to justify their existence and perpetuate the bloated federal payroll.

I think all agencies should have a clear shelf life. The legislation or executive action creating them should uncreate them after, say, five years, and no extensions. If they're still doing their job, they have to be re-created by all-new limiting legislation.

Each full Department should be subject to regular review, and even they should be abolished when they no longer serve their purpose or abuse their power. Aside from the Department of State, Department of Justice and the Department of Defense, I can't think of a single cabinet-level position that couldn't be abolished, streamlined, or joined with another department to increase efficiency and reduce federal payroll.

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