- WEB EXCLUSIVE
- PE COFFEEHAUS
Environmental rules and regulations are expected to be known by everyone according to a strict interpretation of the law. In most cases, the expectation is that the rules should apply to businesses. However, recent actions by EPA demonstrate that it is every citizen's responsibility to know the rules.
Michael and Chantell Sackett live in a small town in Idaho. They purchased property in a developing subdivision. The property is a modest 0.63 acres and they planned to build a home and shop on the site. On the property adjacent to theirs is a wetland. In the front and back of the site are paved roads. The couple did the normal due diligence and obtained permits to construct from the local authorities.
In the meantime, it appears that someone, who is unknown to the couple, complained. That person’s identity is protected against disclosure. The EPA showed up at the property and noted the contractor was adding fill material to the site and ordered them to cease all activity because they considered the property to be a wetland. According to documents from the property owners to the Army Corps of Engineers, they asked the EPA representative how they could determine the property was a wetland and the response was that a little water was visible.
The couple had sold their home before the housing bubble burst and were in temporary quarters until construction could be completed. They tried to contact EPA to see what could be worked out. They were rebuffed. So, they took the only recourse available to them and filed a lawsuit. The agency filed a motion to dismiss and the judge granted it. When Sackett’s lawyer filed for clarification and reconsideration, the judge again denied their request concluding that his decision did not require clarification. The couple met with legal walls at every turn as they worked their way through the Ninth Circuit Court.
EPA sent a letter to the Sacketts demanding that they restore the property to its original condition. Further, they told the couple that penalties for failure to comply could cost them $37,500 per day. The order further described in some detail just what, how many and where plants must be placed. They were also to monitor the site regularly to make sure they survived. By now, the housing market was crumbling. A final requirement was that the couple had to allow full access to the property by EPA and disclose the agency documents to any future potential purchaser.
The maze of legal twists and turns seem unimaginable. Reading some of the Ninth Circuit Court decisions seemed like watching the movie, Catch 22. Large company corporate environmental departments have teams of legal advisers to help them through the various hoops. But what is a private citizen or even a small business to do? Fortunately, the wetland topic has never been completely addressed by the courts and some corporations thought this might be a good opportunity to get a ruling from the best legal minds in the land.
On Monday, Jan. 9, 2012, lawyers are planning to present arguments to the Supreme Court justices. Several corporate interests have joined the process to add their voices by filing friend-of-the-court briefs. The wetland topic is one that is particularly difficult for the most seasoned environmental professional, let alone a private landowner. In the past decade, arguments have progressed to the highest court in the land where the final decision was that the Army Corps of Engineers and EPA have overreached their authority in deciding was constitutes a wetland and navigable water of the United States.
Corporations and associations are not the only groups interested in the final decision of the high court. The NRDC, for example, has blogged on the topic and said that the corporations are just trying “…to hamstring the EPA’s ability to enforce the Clean Water Act – and potentially a whole raft of bedrock environmental laws…”
I for one, hope that the justices will make a firm declaration that will finally put this issue to bed and help corporations make better decisions. I also hope they find a way to help protect private citizens from what appears to be overzealous actions by government agents. There should have been a helping hand rather than the way they were treated. If the property is a wetland, then there should have been a way to provide offsets or some other mechanism to help rather than just slap these people around and confiscate their property.