EPA Gets Epic Smackdown from Supreme Court
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The Fiscal Times
March 22, 2012

When Mike and Chantell Sackett bought land in Idaho zoned for residential construction and acquired the necessary permits for building a home, they believed their dream of owning a custom-made house would become a reality. Instead, the EPA sent the Sacketts into a five-year nightmare of regulatory war over the supposed status of their lot as a wetland, and demanded that the Sacketts entirely undo their work on the land to comply with the Clean Water Act. 

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The Sacketts tried to appeal but were threatened with fines of up to $37,500 per day, and when they tried to go to court to appeal that, they discovered that the EPA had to allow them to go to court.  The Sacketts sued in federal court, and yesterday finally prevailed in a unanimous Supreme Court decision that has far-reaching implications for the EPA and overreaching government intrusion.

The EPA tried its best to keep the federal courts out of the dispute and the Sacketts in limbo, in part by claiming that the agency had not committed a “final agency action,” which would allow the Sacketts to file suit under the Administrative Procedure Act (APA), the aegis under which the case proceeded to the Supreme Court.  The EPA argued that, at some undefined point in time, they might reconsider their demand to the Sacketts for compliance, even though the Sacketts risked double fines (up to $70,000per day) for not reversing their work on the land. 

Justice Antonin Scalia scoffed at the argument in the decision writing that “the mere possibility that an agency might reconsider in light of “informal discussion” and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.” 

Nor did Scalia and the other members of the court buy the notion that a compliance order was just “a step in the deliberative process … rather than a coercive sanction that itself must be subject to judicial review,” as the Obama administration argued.  Scalia points out that sanctions signal that deliberation has come to an end.  Besides, Scalia wrote for the unanimous majority, the Sacketts had tried to get a hearing with the EPA, which the agency rejected – hardly a sign that deliberation over the issue had much of a chance of continuing. 

These arguments represent the arrogance of a bureaucracy that has little interest in oversight, and less in intellectual honesty.  The idea that a compliance order and its accompanying stratospheric fines don’t equal a final result only makes sense from the perspective of those giving the order.  It doesn’t take much common sense to see that a couple trying to build a home on land that didn’t even appear in the EPA’s inventory of wetlands could hardly afford to run up $70,000 in fines each day they didn’t act on a compliance order. 

Political analyst Edward Morrissey has been writing and blogging since 2003. He is also a senior editor at Hot Air, part of the Townhall/Hot Air group of conservative publications, and hosts a weekly radio show in Minnesota.