April 30, 2012

A Sackett ripple effect?

By Damien M. Schiff Senior Attorney

Last week it came to light that EPA Regional Administrator Al Armendariz had made a video several years ago detailing how he enforced various environmental statutes in his district.  Mr. Armendariz stated that EPA’s practice was to select individuals for particularly harsh treatment, to make examples out of them, so that other members of the regulated community would be cowed into submission.  Mr. Armendariz compared his enforcement style to the Roman practice of randomly crucifying members of a newly conquered village.  Mr. Armendariz’s “crucifixion” comments caused a media storm, and over the weekend he submitted his resignation to EPA Administrator Lisa Jackson.

I don’t think it at all implausible that EPA’s decision to throw Armendariz under the bus is in part related to the Sackett decision and the bad press the agency has received.  Moreover, it shouldn’t be surprising to anyone who works with government agencies that these agencies like to make examples of individuals because the agencies don’t have the resources to enforce the laws against every potential violator.  Let’s hope that the Sackett decision will continue to have a liberty-fomenting effect on EPA.

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Sackett v. Environmental Protection Agency

Chantell and Michael Sackett received a local permit to build a modest three-bedroom home on a half-acre lot in an existing, partially built-out residential subdivision in Priest Lake, Idaho. The home poses no threat to water quality but federal EPA regulators nonetheless declared their property to contain a wetland and demanded they stop all work and restore the lot to its natural condition or pay fines of up to $75,000 per day. When they sued to challenge this order, EPA asserted they had no right to judicial review. The district court and Ninth Circuit Court of Appeals agreed, and tossed their lawsuit out of court. The United States Supreme Court unanimously reversed, ruling that failure to allow the lawsuit violated the Sacketts’ constitutional due process rights. They are now litigating their claims in federal district court in Idaho.

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