March 22, 2012

Sackett reaction: Sensible analyses from a senator and a law professor

By Sackett reaction: Sensible analyses from a senator and a law professor

At the American Legislator, Senator Rand Paul (KY) highlights the absurd regulatory realities faced by people like the Sacketts, Charlie Johnson (a former PLF client), and other landowners throughout the United States.  Sen. Paul provides a sober reminder that, despite the importance of yesterday’s landmark victory in Sackett v. EPA, much work still needs to be done:

It is not an overstatement to say that the EPA and the Corps are waging a war against private property owners in the United States. While it is true that environmental protection is important, it must be balanced with the fundamental American right to private property – guaranteed to each citizen in the Constitution. There is only one way to restore this balance: Congress needs to redefine the definition of navigable waters – and in doing so, give the EPA and the Corps strict statutory limits of how far they can regulate.

Sen. Paul points to his bill, S.2122 (the Defense of Property and Environment Act), as “a necessary first step towards protecting families like the Johnsons and the Sacketts, who have now given up years of their lives defending themselves against their own government.”

Meanwhile, at Legal Planet, UC Davis law professor Richard Frank provides a coherent summary of yesterday’s decision.  Prof. Frank concludes:

[M]y own opinion is that Scalia and the Court got this one right. The Sackett decision’s statutory analysis seems compelling, and the equities of this particular David-and-Goliath saga fall rather strikingly in favor of the Sacketts. I don’t often find myself in agreement with Justice Scalia, but I confess that I do here. One of Scalia’s closing observations in Sackett particularly resonated with me: “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into `voluntary compliance’ without the opportunity for judicial review–even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”

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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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