Originally published by The Hill, October 22, 2018.
Federal courts have taken welcome steps in recent years to rein in the runaway regulatory state. Too often executive agencies charged with applying the laws as written by Congress have done so in ways unsupported by the text of those laws. In response, the courts have stepped into the breach to right those violations of the separation of powers set out by our Constitution. This week, the Supreme Court will be asked again to set things right, in a case called Marquette County Road Commission v. EPA.
It is a David v. Goliath story, but here David does not have a slingshot; instead, his weapons are legal papers, the Administrative Procedure Act and two important Supreme Court cases.
The facts are straightforward and, for the most part, not in dispute. In Marquette County, Michigan, the Road Commission wished to build a road extension — County Road 595 (CR 595) — as a shortcut for commercial truck traffic. The proposed 21-mile road would allow trucks to bypass busy city streets, thereby benefiting the health, safety and welfare of county residents.
To complete the road necessitated filling in 25 acres of wetlands, which required a permit under Section 404 of the Clean Water Act. States are authorized to approve a Section 404 permit if the application meets certain conditions. The EPA retains limited oversight authority when the state takes on this authority, which includes the ability to overrule the state’s decision. If the EPA objects, the property owner must begin the permitting process anew with the U.S. Army Corps of Engineers.
That’s what happened here. In 2011, the Road Commission submitted a permit application to the Michigan Department of Environmental Quality (MDEQ), the agency in charge of administering the federally approved permitting plan for the state. The Road Commission and MDEQ worked together to arrive at an approved plan for CR 595, and the MDEQ submitted the permit plan to the EPA.
But the EPA offered unsupported and vague objections to the permit application. The Road Commission attempted to remedy these objections, offering to protect and preserve 63 acres of wetlands for every acre of wetlands filled. But the EPA demanded more. Over nearly two years, no matter what the Road Commission offered, the EPA lodged objections.
Finally, after a September 2012 hearing on the objections and repeated rejections from the EPA, the MDEQ submitted a revised permit application, stating that it believed the application complied with all federal and state laws, and urging the EPA to withdraw its objections. The EPA refused and, in December 2012, lodged an entirely new set of objections unsupported by law.
The MDEQ and the Road Commission could not hope to comply with vague, unlawful objections, and under the Clean Water Act, after 30 days those objections resulted in a veto of the permit. Authority to approve CR 595 then transferred from the MDEQ to the Corps of Engineers, which would have required the Road Commission to start the entire permitting process from square one.
Instead, the Road Commission sought a federal court review of the EPA’s veto of the road project. No one argues that the EPA cannot object to a state-approved Clean Water Act permit; all the Road Commission is saying is that the EPA cannot object for arbitrary and capricious reasons. The EPA says that it can. From the agency’s perspective, its rejection of the state’s plan for the road is unreviewable in court and cannot even be challenged in court.
In other words: the king will not be questioned by the serfs.
The Road Commission rejects that interpretation of the law. The EPA’s veto of the road project is a final decision that has legal consequence. Seen properly, the Administrative Procedure Act allows for the veto to be reviewed in court to consider whether the EPA decision was arbitrary and capricious.
Two recent Supreme Court precedents, Sackett v. EPA and Army Corps of Engineers v. Hawkes, suggest the Road Commission is right. In those opinions, the high court held unanimously that final agency decisions in the Clean Water Act context are reviewable in court. To hold otherwise, the court said, would allow for federal agency “strong-arming” of regulated parties.
The Road Commission knows exactly how strong-arming feels: they had a permit to build a road, but the EPA took away that permit and demanded the commission restart the permitting process, which can take years and costs hundreds of thousands of dollars. That’s local taxpayer money down the drain, to anyone seeing the dispute through the lens of common sense.
The people of Marquette County and the state of Michigan know best how to protect their waters and provide for infrastructure, and Congress explicitly gave them that decision-making authority in the Clean Water Act. But EPA bureaucrats high-handedly overruled both Congress and the people of Michigan by nixing the state plan for CR 595. This case presents the Supreme Court with another chance to remind the EPA — and all federal agencies — that their job is to implement the will of Congress and the American people, not to ignore it.
Mark Miller is a senior attorney for Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.