- WEB EXCLUSIVE
- PE COFFEEHAUS
On Jan. 6, 2012, I posted a blog discussing the case of Michael and Chantell Sackett versus the EPA. Actually, it was not really a case because the agency had denied normal legal recourse with the help of the lower courts by dismissing any and all lawsuits. Read my original post here.
As a short summary, the couple bought property they planned to build their dream home on along with a workshop for Michael. They saved their money and sold their old home to have money to begin construction. All their permits had been approved. However, shortly after starting to clear the land and prepare it, the EPA showed up and ordered the contractor to cease all work as they declared the property to be a wetland. When the Sacketts asked why, the representative pointed and said because I can see water.
The couple was ordered to restore the land to its previous condition and to establish a specific set of plants on the property. They were further ordered to monitor the site to assure that the plants survived. The order included language threatening them with up to $37,500 per day in penalties should they fail to fully comply. The agency flat out refused to negotiate any terms.
Left with no alternatives, the couple filed a lawsuit. The EPA immediately filed to dismiss the claim and it was tossed out by the judge When the lawyer asked for clarification, the judge responded that his order to dismiss was clear and did not require clarification. Moving up the legal ladder, the couple continued to run into such walls.
Corporate America took an interest in the couple's plight and offered to help by filing Amicus Curiae. The fight continued to the U.S. Supreme Court and the justices decided to take the case.
The U.S. Chamber of Commerce filed papers for the court and included in the brief was the following:
In a recent lawsuit between the General Electric
Company (“GE”) and EPA over this issue, a district
court allowed GE to take discovery. Internal
documents that EPA was forced to produce reveal
that EPA actually trains its personnel to make the
terms of unilateral orders “ugly, onerous, and tough”
and “very unpleasant,” in order to coerce
settlements. Pet. Br. 8, Gen. Elec. Co. v. Jackson,
No. 10-871 (S. Ct. filed Dec. 29, 2010) (internal
citations omitted). EPA’s internal documents
further confirm that EPA seeks to threaten
recipients with games of “Russian Roulette,” so as to
further coerce their entry into “‘voluntary’ decrees.”
Id. (internal citations omitted).
EPA may well believe that its tactics are an
appropriate and effective way of dealing with people
and companies that it believes to have violated the
law. But that is exactly why the Due Process Clause
does not leave the choice to the agency. See Fuentes
v. Shevin, 407 U.S. 67, 90 & n.22 (1972).
The entire brief can be read by clicking this link.
On March 21, 2012, the justices unanimously ruled that the EPA had overstepped their authority and the agency should have to defend itself in court. Although the justices were quite clear that they did not agree with the agency and its tactics, they did not overturn the decision but merely said it should go through the courts.
They were clear in their displeasure as Justice Samuel Alito wrote, "The reach of the Clean Water Act is notoriously unclear. 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 a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy." The main problem comes from the original law written by congress as they gave authority to the agency to protect the navigable waters of the United States. However, ever since the law was passed, the definition of what constitutes navigable water has shifted and changed. The EPA and Army Corps of Engineers have failed to come up with a definition that everyone can agree upon. During that time, the reach of the agency has grown and now can cover nearly any plot of land.
Wetlands is a term that was invented to cover areas that could contribute water to the rivers, streams and lakes in this country. That is certainly a very important part of our ecosystem. When I was much younger, we called these areas swamps. Everybody knew what a swamp was but this new term has grown to include any manner of property and much more than just swamps. The agency ended up allowing each individual inspector to determine what was or was not a wetland. Maps are continually revised. Confusion reigns for businesses. It is even harder for the general public. It should not be allowed to let the EPA be the only say on the matter. Hopefully, this situation will spur the congress to finally address this issue. I will not be holding my breath.