Obama EPA’s on Trial

Apr 4, 2012 by AFP

Over the past two weeks a pair of judicial decisions has served to remind President Obama’s EPA that it is not the sole arbiter of U.S. industrial policy. In Sackett v. EPA, the Supreme Court unanimously rejected EPA’s attempt to hold an Idaho couple hostage while the agency considered whether and how hard EPA was going to fine them for their home construction project. In Mingo Logan v. EPA, the D.C. District Court reprimanded EPA for trying to effectively revoke a three-year-old Clean Water Act permit for the Spruce Mine in West Virginia, a move EPA never before attempted in the Act’s 40-year history. Although these two victories are key protections for property rights and permit finality, the biggest decisions are yet to come. EPA is currently on a regulatory adventure trying to manage the nation’s greenhouse gas emissions, even though Congress never intended them to do so. Will the courts once again put the brakes on the rogue agency?

The Sacketts are an Idaho couple who were trying to move dirt and fill on their property in preparation for home construction. Although the site is separated from Priest Lake by several other lots, EPA tried to assert that the property contained wetlands within the meaning of the Clean Water Act. The agency then slapped a compliance letter on the Sacketts and warned them that if they didn’t comply they would face a penalty of $75,000 per day. The Sacketts, honorably, challenged this assertion in court but then EPA stated the couple couldn’t get judicial review because the fine hadn’t actually been issued yet. On March 21, the Supreme Court issued a 9-0 decision rejecting EPA’s claim.

The real devil in Sackett is not EPA trying to evade judicial review, but a multi-decade battle over the scope of Clean Water Act jurisdiction. The Supreme Court has repeatedly considered the question and in the most recent decision, Rapanos, they were unable to come to a majority decision. Both EPA and the Supreme Court have found that the term “navigable waters,” which delineates the Act’s reach, is ambiguous and that Congress was not clear how far they intended EPA to regulate.

In his concurring opinion, Justice Alito lays out the absurdity of the Executive Branch using a federal agency to fine a property owner under jurisdiction that both the Legislative and Judicial Branches have been unable to clarify. Alito writes, “In a nation that values due process, not to mention private property, such treatment is unthinkable. … Allowing aggrieved property owners to [challenge the fine] is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

EPA’s aggressive overreach in Mingo Logan is no less egregious. A mining company in West Virginia worked for ten years with the state, EPA and the Army Corp of Engineers to get a Clean Water Act permit for its Spruce Mine project. In 2007, the Army Corp issued the final permit allowing the company to move earth that was leftover after mining into an adjacent valley. Once President Obama got elected and control of the EPA changed hands, the agency issued a letter in 2011 attempting to revoke the permit, an unprecedented move under the Clean Water Act.

On March 23, the D.C. District Court blocked EPA’s attempt as beyond its power and in clear violation of Congress’s intent that, barring new information, permits under the Clean Water Act are final so that employers and workers can have some level of certainty regarding regulatory compliance. The district court judge wrote, “EPA resorts to magical thinking” by purporting to have the power to compel “automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof! … [This leaves] permittees in the untenable position of being unable to rely upon the sole statutory touchstone for measuring their Clean Water Act compliance: the permit.” The New York Times has already urged the agency to appeal and it certainly will. But a victory in the court of first instance is certainly a repudiation of EPA’s overreach.

These two Clean Water Act cases only speak to one aspect of EPA’s vast regulatory overreach, routinely pushing the bounds of its authority past what Congress intended. The most egregious instance is EPA’s effort to contort the Clean Air Act into a global warming law. That adventurism is being challenged in the D.C. Court of Appeals; issues under review include whether the agency can unilaterally rewrite statutory thresholds to pick-and-choose which entities it wants to regulate and whether the agency conducted proper scientific review of global warming science before it started to regulate.

What the country really needs on all of these EPA issues is for the People’s representatives in Congress to clarify what EPA can and cannot do. Unfortunately, it appears that most Democrats in Congress are comfortable allowing EPA to do Congress’s job and have blocked repeated efforts to clarify the agency’s power. Property rights advocates and those committed to reviving and protecting the economy may be left looking to the Third Branch of government for protection. Sackett and Mingo Logan show that regulatory sanity can sometimes prevail in court.

Mr. Valvo is the director of government affairs at Americans for Prosperity.

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