January 5, 2012

Washington Post, ScotusBlog, L.A. Times on Sackett case

By Washington Post, ScotusBlog, L.A. Times on Sackett case

The Washington Post‘s Robert Barnes has a story here on the Sackett case, which will be argued on Monday:

[T]he Supreme Court will review the Sacketts’ four-year-long effort to build on land that the EPA says contains environmentally sensitive wetlands. A decision in the couple’s favor could curtail the EPA’s authority and mean a fundamental change in the way the agency enforces the Clean Water Act.

Even before the court takes up the case, the couple have become a favored cause for developers, corporations, utilities, libertarians and conservative members of Congress, who condemn what one ally told the court is the EPA’s “abominable bureaucratic abuse.”

It is a familiar spot for the agency, which has come under withering criticism in the political arena. Republican presidential contenders routinely denounce the EPA’s actions and regulations as “job-killers,” while GOP House members have voted to ban the agency from regulating greenhouse gases and tried to cut its enforcement budget….

“This is what happens when an overzealous federal agency would rather force compliance than give any consideration to private property rights, individual rights, basic decency or common sense,” said the Sacketts’ home-state senator, Mike Crapo (R.)

Meanwhile, SCOTUS Blog‘s Lyle Denniston previews Monday’s argument here. And the L.A. Times’ David Savage has more here:

It remains unclear why EPA officials were convinced the Sacketts’ lot was a wetland. One part of the lot is bordered by cattails, and it is wet sometimes during the year, Mike Sackett reported. But he also said no water flows from his land to the lake, which is about 500 feet away and across a road. Contradicting the Sacketts, an environmental group says the couple were warned in advance their lot had a wetland.

The legal authority for regulating wetlands comes from the Clean Water Act, which forbids the “discharge of any pollutant” into the “navigable waters of the United States.” Since the late 1970s, the EPA and the Army Corps of Engineers have claimed broad authority to protect wetlands, even when they are not connected to rivers or lakes. As the Sacketts learned, putting gravel on a dry lot amounts to “discharging pollutants” into the “waters of the United States” if the lot is deemed to be wetlands.

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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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