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The Supreme Court Finally Clamps Down on the EPA
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.
Published in General
I remember nearly forty years ago sitting in a Constitutional Law class discussing federal jurisdiction over navigable waters. While much of my law school career has fallen into the mists of time, I do remember our professor saying something like this: “If there’s enough water that a Supreme Court decision will float on it for a minute, the feds believe it’s navigable.” It was funny at the time; not so funny now.
Without actual punishment of the EPA and the fascists involved they’ll just move on to their next victim. I’d like to see punitive damages followed by firings and loss of pension, and to throw in a little ‘in terrorem’ threaten the SOBs with Leavenworth.
“Fines were to accumulate at up to $75,000, an in terrorem sum far in excess of any imaginable public loss”
Professor Epstein, I think the fines actually accumulated at up to $75,000 per day. A $75,000 federal fine for daring to build a house near a lake is terrifying enough for a private citizen, but $75,000 per day is simply monstrous, making immediate capitulation all but mandatory.
Without any external pressure to do so, organizations and people tend to maintain their current direction – momentum, in other words. The EPA lost a case, but their momentum continues unabated. Why? Because there are no negative consequences for their actions. The agencies will change when they start getting spanked, and hard, but that spanking will never come from the politicians who love patronage and the selling of votes through the support of massive federal bureaucracies that are seemingly built to thwart individual liberty, the right to property, and the right to be left the hell alone.
Richard,
Absolute power corrupts absolutely. The EPA flush with the absolute power that mindless ideology yields used the full coercive force of a Federal Regulatory Agency to crush the rights of an individual citizen. This was no mistake. The Sacketts complained loudly that an error had been made but the agencey cared nothing for the truth.
That the Supreme Court voted 9 to 0 on this is heartening only in that we now know that at the very pinnacle of society the Black Robes of the High Court still make men and women think about Justice in pure terms.
However, that people with college degrees, big salaries, and plenty of staff could sit at the EPA and destroy individual citizens who were obviously guilty of nothing is a very horrific tale to tell.
This should be a warning to us all just how deep the rot is in this society. There is no such thing as ideological truth. Without truth there can be no Justice. Every one of us is a huge consumer of Justice. When the supply is threatened we should be ready to protect it, not some child’s fantasy of the environment.
Regards,
Jim
It’s on these kinds of issues that I part company with neoconservatives. Neocons have come to terms with the administrative state. No, it’s worse. Neocons think they can use all that unconstitutional power for good purposes. Naive. Perhaps stupid. Definitely dangerous.
“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.”
I am taking this purely from what you wrote, for I don’t know any other details of this case. However, to say that dirt fill cannot cause harm to a lake is factually untrue. Runoff of fine particles and clays (i.e., fill) can cause fish kills because it interferes with fish being able to obtain oxygen. It is also easily avoidable until vegetation has stabilized the soil.
Exactly. Who at the EPA will lose their jobs for this travesty? No one.
(1) Can a 1983 action be brought for this attempt by the EPA to deprive the Sacketts of their rights? How about by the thousands of others who complied rather than try to fight?
(2) Please write up something on the big theme of Sackett (EPA arrogance) and last year’s Mayo case (Treasury arrogance). In each, the agency’s position was, almost literally, “the rules don’t apply to us, because we’re special.” Teh tax people have already been going to town with names, but maybe you could use “Sackett To Me with the Mayo”.