There is much that is entirely surreal about the modern administrative state, with its systematic tendency to overreach the bounds of law and of common sense. No where is this more painfully evident than in the Environmental Protection Agency’s zealous enforcement of the Clean Water Act, which was, thankfully, slapped down this week by a unanimous Supreme Court in Sackett v. EPA.
On its face the key provisions of the CWA are the soul of good sense. The provision makes it illegal for any person to “discharge “ a pollutant into “navigable waters” of the United States. It is easy in the abstract to applaud a statute that seeks to strengthen the ordinary private remedies against pollution, at least if it's directed against clandestine maneuvers of shady operators to dump drums of waste oil in a river in the dark of night.
But the EPA does not stop with the obvious and useful. Instead it has relentlessly sought to expand its own scope by a two-pronged attack. The first was to expand by regulation the definition of navigable waters so that it includes any wetland adjacent to a navigable body of water. Pursuant to that elastic definition, the EPA told the Sacketts that they were sitting on top of a wetland when they sought to build a house on 2/3- acre plot in northern Idaho separated by several other lots from a local lake. Adding rock and dirt fill to their property was absurdly construed as a discharge of pollutants by a set of pro forma charges that neglected to allege how rock or dirt fill constituted so much as a single particle of anything from which the nearby Priest Lake needed protection.
The EPA order required the Sacketts to “immediately” begin an EPA program to “restore” the site to its original condition. Fines were to accumulate at up to $75,000 per day, an in terrorem sum far in excess of any imaginable public loss. Yet until the government decided to initiate litigation, the EPA said that the Sacketts could not get any judicial review of a very shaky designation. The pressures to capitulate are too obvious to mention.
Yet the Sacketts fought back. Justice Scalia in a strong opinion made it clear that once the EPA made up its mind, its action was “final agency action” for the purposes of the Administrative Procedure Act, so that the Sacketts were entitled to their day in court. My own view is that if the APA did not offer this sort of relief, then the Constitution surely does, given the deprivation of both liberty and property can only be done with due process of law. Fortunately, this case did not get to that point.
What is so striking about this case is that the EPA was unrepentant about its tactics. Nor will it reconsider its overbroad definition of navigable, which was exclusively a creature of its own regulation. Justice Alito said that the statutory term “the waters of the United States” are hopelessly indeterminate. Not so. It is just that form of linguistic relativism that lets the EPA expand its own jurisdiction. In his otherwise excellent concurrence, Justice Alito should not have bought into the sloppy relativism that in the end undermines the rule of law. The EPA has power to regulate discharges into navigable waters, not to impose building codes on land long before any such discharge takes place. The right way to look at this easy issue is this. The switch from private to public enforcement of the nuisance law should only change who brings the action. But it should never allow the government to avoid the requirement of proving actual or imminent harm before it acts, for in that extension lurks all of its arbitrary power.