March 21, 2012

Sackett reaction: NRDC shows just how out of touch it is with reality

By Sackett reaction: NRDC shows just how out of touch it is with reality

The headlines in response to PLF’s landmark victory today in Sackett v. EPA have, for the most part, been fair and accurate.  CNN, for example, rightly noted that with today’s decision, “‘Little guy’ wins high court fight over property rights.”  Reuters reports that “U.S. top court backs landowners, limits power of EPA.”  And the Chicago Tribune adds that “Property owners who want to build get a boost against regulators.”

Blog coverage of Sackett has been similarly forthright.  See, e.g., The Volokh Conspiracy and Townhall.com.

But leave it to our friends at the Natural Resources Defense Council to a provide a highly misleading take on a decision that should in fact find favor will all those who appreciate the concept of due process of law.

The Sackett headline from NRDC? From its press release: “Supreme Court Allows EPA to Enforce Clean Water Act.”

Of course, this case was never about the ability of the EPA to enforce the Clean Water Act, for NRDC to suggest that the Supreme Court was asked to prevent EPA from enforcing the Act is absurd.

After this headline, however, NRDC’s disingenuity only gets worse.  Here is the statement from NRDC’s Jon Devine in response to today’s decision:

“The Supreme Court did not give anyone a license to pollute. Pure and simple. Those who pollute our waters will still be held accountable.

“Today’s decision affirmed the legal principle that the EPA under the Clean Water Act may issue compliance orders to promote speedy resolution of pollution problems. It grants recipients of such orders, at a time of their choosing, a day in court to challenge them. The court did not adopt any of the radical ideas advanced by industry and its allies that could have severely hampered public health and environmental protections.”

It says a lot about NRDC that it is so misguided as to imply that the Sacketts were asking the Supreme Court for a “license to pollute.”  The actual predicament faced by the Sacketts and thousands of other Americans is simply whether they can have their day in court to challenge the EPA. As Justice Alito pointed out in his sharp concurrence today, the answer to that predicament should be a no-brainer:

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 alot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined upto $75,000 per day ($37,500 for violating the Act andanother $37,500 for violating the compliance order). And if the owners want their day in court to show that their lotdoes not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

Rather than celebrate this triumph of fairness and equal access to our court system for what it is, NRDC wrongly asserts that the Supreme Court was asked to adopt “radical ideas advanced by industry and its allies that could have severely hampered public health and environmental protections.” This is nothing more than scare tactics in a sly attempt to cover for the position NRDC actually took in this case, viz., that the Sacketts shoud not have their day in court. Fortunately for all Americans, the Supreme Court understands the importance of checks and balances better than NRDC.

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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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