No room for EPA ‘strong-arm­ing’

Unan­i­mous Supreme Court ex­co­ri­ates agency for vi­o­lat­ing home­own­ers’ due process

The Washington Times Daily - - Opinion - By Gary Shapiro

Michael and Chantell Sack­ett wanted to build a house on some land they owned a few blocks from Priest Lake in Bon­ner County, Idaho. Lit­tle did they know at the time that their ef­forts would at­tract the at­ten­tion of En­vi­ron­men­tal Pro­tec­tion Agency (EPA) reg­u­la­tors and ig­nite a na­tional dis­cus­sion on the Obama ad­min­is­tra­tion’s reg­u­la­tory strong-arm tac­tics.

The Sack­etts’ “vi­o­la­tions” seemed be­nign: They filled a half-acre of wet land on their prop­erty with dirt and rock and be­gan the build­ing process. A few months later, they re­ceived a “com­pli­ance or­der” from the EPA de­mand­ing that they im­me­di­ately re­store the site in ac­cor­dance with the EPA’S Restora­tion Work Plan or face fines of up to $75,000 a day.

The Sack­etts asked the EPA for a hear­ing, as they did not be­lieve their prop­erty was sub­ject to EPA re­view. The Sack­etts said their prop­erty was not ad­ja­cent to the lake, and the hal­facre of wet land was not “nav­i­ga­ble water” within the mean­ing of the Clean Water Act. They said the land­fill they used, there­fore, was not an “il­le­gal dis­charge” into “nav­i­ga­ble wa­ters” banned by the Clean Water Act.

The EPA de­nied the re­quest for a hear­ing, and a fed­eral dis­trict court and the 9th U.S. Cir­cuit Court of Ap­peals re­jected their re­quest for re­view of the poli­cies that had de­prived them of “life, lib­erty or prop­erty, with­out due process of law” in vi­o­la­tion of the Fifth Amend­ment.

Hav­ing nowhere else to go, the Sack­etts made a Hail Mary ap­peal to the Supreme Court. Amaz­ingly, the court heard the case and on March 21 is­sued a rare unan­i­mous decision or­der­ing a re­view of what it called the EPA’S “strong-arm­ing” tac­tics.

Af­ter re­view­ing the facts and the stretched def­i­ni­tion the EPA gave to “nav­i­ga­ble wa­ter­ways,” the Supreme Court acted strongly and de­ci­sively. It reversed the lower courts’ re­fusal to act. The court re­jected the Obama ad­min­is­tra­tion’s claims that, tech­ni­cally, the or­der was not final, as no fine had been is­sued. In­stead, the court de­clared:

“[T]here is no rea­son to think the Clean Water Act was uniquely de­signed to en­able the strong-arm­ing of reg­u­lated par­ties into ‘vol­un­tary com­pli­ance’ with­out the op­por­tu­nity for ju­di­cial re­view.”

This case is hugely sig­nif­i­cant, as it is a rare, unan­i­mous re­buke to an over­reach­ing fed­eral gov­ern­ment. That all nine jus­tices, in­clud­ing two Obama ap­pointees, would agree the ad­min­is­tra­tion was “strong-arm­ing” is quite as­tound­ing. More­over, that a unan­i­mous court would re­verse the ac­tion of two lower fed­eral courts demon­strates a rather strong dis­con­nect and se­ri­ous emo­tional re­vul­sion to the heavy­hand­ed­ness of the ad­min­is­tra­tion in this case. We can only hope this ju­di­cial re­buke of strong-arm reg­u­la­tors will ex­tend be­yond the EPA, as Obama ad­min­is­tra­tion reg­u­la­tors are con­sis­tently demon­strat­ing the same kind of gov­ern­ment strong-arm­ing the EPA used in this case. The U.S. Fish and Wildlife Ser­vice sent 30 armed agents to raid a Ten­nessee Gib­son gui­tar fac­tory, tak­ing in­ven­tory and prop­erty, ap­par­ently be­cause some bu­reau­crat in a cu­bi­cle wrongly thought Gib­son had vi­o­lated an­other coun­try’s laws, in spite of the fact that the other coun­try, In­dia, hadn’t been con­sulted. The Na­tional La­bor Re­la­tions Board tried to give la­bor unions ne­go­ti­at­ing power by has­sling the Boe­ing Co. for build­ing a job-cre­at­ing fac­tory in South Carolina. Those ex­am­ples are just the tip of the ice­berg. Ac­cord­ing to the Her­itage Foun­da­tion, the Obama ad­min­is­tra­tion has rushed through four times the amount of rules is­sued by the Ge­orge W. Bush ad­min­is­tra­tion in the same amount of time.

The ad­min­is­tra­tion has thou­sands of bright, well-mean­ing ide­o­logues pas­sion­ate about so­cial change, pro­tec­tive of the en­vi­ron­ment and ea­ger to change the world. But they are do­ing it by strong-arm­ing Amer­i­cans and weak­en­ing our econ­omy and lib­erty.

Fi­nally, in the Sack­ett case, all nine jus­tices of the Supreme Court spoke up to­gether and said enough is enough. Strong-arm­ing can be a vi­o­la­tion of con­sti­tu­tional rights — even if it is not a tech­ni­cal vi­o­la­tion of the law.

This unan­i­mous decision should move Pres­i­dent Obama to halt all in­tru­sive fed­eral rule-mak­ing un­til strong checks can be put into place to pro­tect the spirit and prin­ci­ple of the Fifth Amend­ment right to due process. Such a move would be good for busi­ness, the econ­omy and free­dom.


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