EPA Case before the Supreme Court

[jimmy olsen]

It does sound like there should be more transparency and the ability to contest rulings.

http://usnews.msnbc.msn.com/_news/2012/01/09/10071389-epa-reach-too-far-justices-hear-case-of-interest-to-big-business-ron-paul

EPA reach too far? Justices hear case of
interest to big business, Ron Paul

Pacific Legal Foundation

This property in Priest Lake, Idaho, has become a battleground over the reach of the U.S. Environmental Protection Agency.
By msnbc.com staff and news services

WASHINGTON -- The Supreme Court on Monday heard arguments in a case that sounds small but could have huge implications for property owners, corporations and federal regulations.

Some of the justices were clearly critical of the Environmental Protection Agency, calling its actions in the case heavy handed.

The justices were considering whether to let an Idaho couple challenge an EPA order identifying their 0.63-acre lot as "protected wetlands."

Justice Samuel Alito called the EPA's actions "outrageous." Justice Antonin Scalia noted the "high-handedness of the agency" in dealing with private property. Chief Justice John Roberts said that the EPA's contention that the couple's land is wetlands, something the couple disagrees with, would never be put to a test under current procedure.
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The justices will rule by summer.

Mike and Chantell Sackett, the owners of the lot in Idaho, argue the EPA overstepped its jurisdiction by declaring the site a wetland.

Republican presidential contender Ron Paul has rallied for their cause, and their supporters in court include the American Farm Bureau Federation, the American Petroleum Institute, the U.S. Chamber of Commerce, the National Association of Home Builders, the National Association of Manufacturers and even a major corporation, General Electric.

Those allies aren't interested in the specific property but in making it easier to contest EPA compliance orders.

The justices are considering how and when people can challenge the kind of order the Sacketts got. The EPA issues nearly 3,000 administrative compliance orders a year that call on alleged violators of environmental laws to stop what they're doing and repair the harm they've caused.

Pacific Legal Foundation

Mike and Chantell Sackett are suing the EPA.

General Electric, for its part, failed to persuade the court to hear its challenge to a similar feature of the Superfund hazardous waste site law. It says the justices should use the Sacketts' case to make clear the government must "provide a timely and meaningful hearing" before companies and individuals are forced to take expensive measures ordered by the EPA.

Environmental groups counter that a purpose of the orders is to make it easier to negotiate a resolution without a protracted legal fight. "These orders are an important tool for EPA and states to facilitate prompt remedies for real and serious environmental harms that are ongoing," said Lawrence Levine, a senior attorney with the Natural Resources Defense Council.

Justice Anthony Kennedy wondered how far the Supreme Court should go in a ruling, noting that government agencies often threaten citations when people don't comply with the law. "Health inspectors go into restaurants all the time and say: 'Unless you fix this, I'm going to give you a citation.' Fire inspectors, the same thing," he said.

Alito noted that the Sacketts had to wait until the EPA sued them to even challenge the idea that there were wetlands on their property.

"You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: 'You have filled in wetlands, so you can't build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to,'" Alito said. "You have to turn over to us all sorts of documents, and for every day that you don't do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you."

Roberts said that because of the potential fines, few people are going to challenge the EPA's determinations.

"Because of the administrative compliance order, you're really never going to be put to the test, because most land owners aren't going to say, 'I'm going to risk the $37,000 a day," Roberts said. "All EPA has to do is make whatever finding it wants, and realize that in 99 percent of the cases, it's never going to be put to the test."
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Couple's claims
The Idaho saga started in 2005 when the Sacketts bought the lot near scenic Priest Lake for $23,000 and planned to build their home there.

The EPA said the Sacketts illegally filled in most of the lot with dirt and rocks in preparation for construction. The agency said the property is a wetlands that cannot be disturbed without a permit. The Sacketts had none and the EPA threatened fines of more than $30,000 a day unless the site was restored.

The Sacketts -- who are being represented by Pacific Legal Foundation, which advocates for property rights and limited government -- say they had no reason to suspect there were wetlands on their property.

Just before the foundation was to be poured, three EPA officials showed up at the property and said they believed the land was wetlands. They asked to see a permit but then told the workers to stop when none was provided.

Six months later, the EPA sent the order that triggered the court case.

Mike Sackett says someone must have tipped off the EPA to the work.

"There's no common sense, and the EPA, they've gone rogue," Chantell Sackett said in a recent interview. "They do whatever they want. They bend the rules and they make your life hell."

Expert warned them about wetlands
The Natural Resources Defense Council, which filed legal briefs on behalf of the EPA, counters that documents show the Sacketts have left out important parts of the story.

The documents, obtained from the U.S. Army Corps of Engineers under the federal Freedom of Information Act, show that the couple disregarded the opinion of a wetlands expert they hired to evaluate their property.

The Sacketts also passed up an offer from the Army, which shares jurisdiction over wetlands with the EPA, to seek a permit that might have allowed work to continue on the site with little delay, according to the NRDC.

Tom Duebendorfer, a biologist who specializes in wetlands, confirmed to The Associated Press that he advised the Sacketts in May 2007 that their property was a wetlands and that there were wetlands on three sides of their land. The Sacketts say that in 2010, other wetlands consultants examined their land and concluded Duebendorfer was wrong.
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"I maintain they were wetlands," said Duebendorfer, who says he has worked in the Pacific Northwest for 35 years.

He also said it would have been relatively easy and inexpensive for the Sacketts to fill out what is called an "after-the-fact" permit with the Corps of Engineers that is intended for situations like the Sacketts'.

Levine, the NRDC attorney, said the permit is "meant for the little guy."

[The Minsky Moment]

Interesting case and a fun transcript.

The problem the EPA faces is that they have to deal with thousands of these little cases and they don't want the landowners incented to just destroy the wetland and then seek permission later.
But the consequence of the current scheme is that once the EPA issues an order, there is no way a landowner can challenge the finding of a wetland without affirmatively violating the order and disturbing the land, which could result in crippling penalties if a court finds for EPA.

[grumbler]

The Sacketts don't sound at all innocent in this.  I smell the stench of politics from the moment they decided to ignore their own hired consultant and then claimed that they had no idea that there were wetlands on their property, despite having just been authoritatively told differently.  I really wonder how long the Pacific Legal Foundation has been involved in the case, and who provided the mysterious "experts" who told them that the actual expert was wrong.  The over-the-top language the Sacketts use is another clue.

Federal agencies certainly can screw up, but it is hard to see how they screwed up here.  The Sacketts turned down the compromise designed to avoid having people like them caught in this kind of situation, if the story is correct.

[garbon]

The Sacketts don't sound at all innocent in this.  I smell the stench of politics from the moment they decided to ignore their own hired consultant and then claimed that they had no idea that there were wetlands on their property, despite having just been authoritatively told differently.  I really wonder how long the Pacific Legal Foundation has been involved in the case, and who provided the mysterious "experts" who told them that the actual expert was wrong.  The over-the-top language the Sacketts use is another clue.

Federal agencies certainly can screw up, but it is hard to see how they screwed up here.  The Sacketts turned down the compromise designed to avoid having people like them caught in this kind of situation, if the story is correct.

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