EPA Can Fine You As Long As It Wants—With No Review

EPA rules the world!
EPA Agent Stephen Segal protects the wetlands

The EPA came to Idaho and said in a booming voice Stop! to Mike and Chantell Sackett, who were building a home on a plot zoned for residences. The EPA shouted because it had determined that a small portion of the Sackett’s half-acre was—are you ready?—a wetland. And therefore sacred.

Not only did the Sackett’s have to cease building, if they didn’t return the property to the EPA’s vision of purity, they would be fined $37,500 per day. This was stated in the EPA’s compliance order.

And, oh yes, they would be fined an additional $37,500 per day for violating the Clean Water Act, an Act which gave EPA power to issue fines for both violating the Act and for violating compliance orders written under the authority of the Act. Got it?

For our less mathematically gifted readers, that’s seventy-five big ones. A day. How many days? Ah, here is where the story gains interest. Forever: that’s how many days.

Evidently, some slick, unelected, unaccountable, uncharitable and foolish bureaucrat thought that this double-dosing of fines would be a good solution to eliminate our deficit. But the joke’s on them, because even if the EPA gets away with cheating the Sacketts out of their money, it would still take over five-hundred-thousand years of daily fines to pay off the deficit—made large in part by paying the salaries of the windy minds who run the EPA.

The story grows in hilarity when you learn that the Sacketts have no recourse. No one to turn to. They cannot ask their mayor, they cannot appeal to Congress. The police won’t help them. They may not even ask a judge for relief, because the EPA has decided that its compliance orders are subject to judicial review only when the EPA says they are.

They can’t even ask the EPA! That is, they can and did ask, but the EPA did not deign to answer. And it is not required to. Pay the fine, sucker.

Well, this was too much for the Sacketts, who decided to sue anyway. Not just about themselves, but about the EPA’s ability to Lord it over all people. The Sacketts found themselves at the Ninth Circuit court. Which decided that, since the EPA would scarcely make a mistake because they are a branch of the government, told the Sacketts to go packing. The Ninth Circuit, if you haven’t guessed from the evidence, is based in California.

The Sacketts would not settle and pressed their case even unto the Supreme Court. Which heard oral arguments on Monday, 16 January 2012.

Said Malcolm Stewart, attorney for the EPA, regarding the greedy double-fine:

The compliance order is intended to specify the violation that EPA believes to have occurred and the measures that EPA believes are necessary in order to achieve prospective compliance. And the statute does provide separately for penalties for violating the statute and penalties for violating the compliance order.

As an exercise of our duty of candor to the Court, we acknowledged in our brief that the government reads the statute to allow the legal possibility of double penalties, that is up to $37,500 per day for violating the statute, up to 37,500 per day for violating the compliance order. I think that’s really a theoretical rather than a practical -­–

He was interrupted by Justice Breyer who had to point out that distinctions of these kinds were irrelevant.

Following so far? Because it’s about to turn strange.

It turns out (how is another question) that the Army Corps of Engineers could travel to the Sackett’s would-be homestead and, if the Corps decides that their land is a wetland, could grant the Sacketts a permit to fill in the wetness so they can build. But if the Corps says that their wee chunk of land was not a wetland, they would not issue a permit. Even if they got the permit, the EPA might not honor it and still fine the Sacketts.

The EPA can issue compliance orders whenever it likes and does not need probable cause. Further, the Sacketts—or you, dear reader—always stand in danger of the EPA swooping down even if your house is already built. There is no statute of limitations under the EPA’s theory of “continuing violation.” If the EPA says it’s a wetland, by golly, it’s a wetland, or was, and pay or please the EPA you must.

The Sackett’s lawyer is only asking for the Supreme Court to allow the EPA’s actions to be subjected to judicial review just as all other actions by the government are. Such a meager request, a pittance! Yet the EPA is fighting hard so that it may remain arbitrary and aloof.

Even if this is granted Justice Scalia made the valid point that “the factual questions that go to whether these are wetlands or not are going to be decided giving substantial deference to the agency’s determination of the facts.”

How can two small people of limited funds battle an array of bureaucrats who have the full majesty and purse of the government behind them? Answer: they cannot.

More to come. This post inspired by HotAir.

19 Comments

  1. The state of Idaho needs to be reminded of its responsibility to its citizens.

    “…in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them…”, James Madison

  2. Wetlands do more than provide habitat for plants and animals in the watershed. When rivers overflow, wetlands help to absorb and slow floodwaters. This ability to control floods can alleviate property damage and loss and can even save lives. Wetlands also absorb excess nutrients, sediment, and other pollutants before they reach rivers, lakes, and other waterbodies.

    They are great spots for fishing, canoeing, hiking, and bird-watching, and they make
    wonderful outdoor classrooms for people of all ages.
    http://water.epa.gov/type/wetlands/upload/2005_01_12_wetlands_overview.pdf

    How much “fishing, canoeing, hiking and bird-watching” had the Sacketts’ 0.63 acre lot been providing?

  3. Maybe that answers the question on why their agents need guns. Some don’t take kindly to haughty strangers. I think the mentality that allowed the creation of a non-answerable bureaucracy will be our eventual downfall.

    http://www.nytimes.com/gwire/2011/02/04/04greenwire-its-a-dangerous-profession-epas-top-enviro-cop-75186.html?pagewanted=all

    Even gun owners want the question answered.

    http://floridaconcealedcarry.com/Forum/showthread.php?8176-Why-do-EPA-agents-carry-guns

  4. Annoyances such as this reportedly are what inspired the reprehensible actions of Timothy McVeigh. Yet, I have seen a house and septic system built on a narrow strip of beach literally ten feet from the water in a tidal estuary where no sensible person would put it (the gov’t quite properly forced it to be removed, btw). The problem with any regulation is reasonable application, of course, but how is that written into the codes?

  5. Gary, just hope that some government bureaucrat doesn’t ever see fit to annoy you. (Of course, that can’t happen to you besides you have recourse, right?).

  6. SCOTUS blog has an ongoing record of the briefs, etc. on this case at:

    http://www.scotusblog.com/case-files/cases/sackett-et-vir-v-environmental-protection-agency-et-al/?wpmp_switcher=desktop

    An analysis of what this case, precisely, is about is at: http://www.scotusblog.com/?p=135834 . This will likely provide most readers more than they knew AND dispel some misconceptions, exaggerated perceptions, etc.

    The various Amicus Briefs (at the first link, above) will interest those that actually want to learn the facts, applicable law, and associated values underlying the manner in which various precedents are addressed in some detail.

    An analysis of Sackett v. EPA, specifically of the trial presentation by both sides & the Justice’s reactions to those presentations — by an informed legal analyst — is at: http://www.scotusblog.com/?p=136310 .

    The expert also said, “at one point, Chief Justice John G. Roberts, Jr., intimated that Schiff was exaggerating the threat to his clients, since, Roberts said, the fine might actually be only $10 a day, not the maximum.” This is a misreading of the transcript. Justice Roberts was posing the $10 as a hypothetical, and suggested that if the fine was low the Sacketts might not have a case. The Sackett’s lawyer responded that it was not the size of the penalty, but the legality of it. This argument appeared to convince the court (we’ll see).

  7. Ken,

    Good link! The expert’s opening words are (last link):

    With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers.

    For a second, I was worried my summary stating that the EPA lawyer admitted to the double-fining, even though pulled directly from the transcripts, was wrong. But it was okay after all.

    The expert misread the transcript, I think, when he said that “at one point, Chief Justice John G. Roberts, Jr., intimated that Schiff was exaggerating the threat to his clients, since, Roberts said, the fine might actually be only $10 a day, not the maximum.” Robert’s was putting a hypothetical to Schiff and wondered if the Sackett’s case would have been as strong had the fine been low. Schiff replied that perhaps it wouldn’t be, but that the size wasn’t the real problem. This seems to have convinced the Court (we’ll see).

    Update In the first link (good analysis):

    Perhaps one more facet of the Court’s recent history is worth noting: as the Sacketts’ lawyers wisely pointed out, the Court has grown somewhat suspicious of the grasp of federal agencies — including the EPA — for an ever-widening superintendence over waterways and wetlands. The case of that down-home lot near the shore of Priest Lake, a couple of blocks away from the lake shore itself, may have raised its own questions as to how much environmental harm the building of the Sacketts’ house would threaten.

  8. Some day I may go into my go around with the IRS that took nearly 10 years to resolve to show what it’s like to be involved with administrative law and arbitrary action. What’s really sad is that the Sackett case had to go to the Supreme Court.

    Ken,

    What misconceptions and exaggerated perceptions did you have in mind? Those analysis links seem to pretty much sum up today’s post.

  9. Another case relevant to this was the Kensington Gold Mine settled by the SCOTUS couple of years back. The crux of the case was the mine wanted to dispose of its tailings in a wetland (a small lake) and received authorization from the Corp of Engineers to do that. The EPA claimed primacy and over-ruled the Corp. Coeur Alaska (owner of Kensington) took the case right the way up to the SCOTUS. They had deep enough pockets and presumably the tacit support of the Corp to settle this.

    The SCOTUS put the EPA in its place and approved the mine plan as originally permitted.

    http://www.reuters.com/article/2009/06/22/coeur-alaska-court-idUSN2250355620090622

    One can only hope that the justices will see themselves again as the last line of reasonableness against an increasingly overreaching EPA.

  10. Speed, utility based on the size of the wetland is a naive statement. On your view, we can systematically fill the wetlands by only using tiny pieces at a time. I don’t agree with the order but your argument is short-sided.

  11. Don’t understand what the big deal is. When the plaintiffs’ contractor first encountered the EPA and asked what evidence they had that the property was a wetland, the EPA’s response was, “we saw water there.”

    Case closed; tag ’em and bag ’em.

    Will be interesting to see how Soto and Kagan vote on this one.

  12. It is common where I live for a land owner to be told they cannot build a home on their property. Everything from inadequate drainage for a septic system to wetlands. However, magically, if you give the building permit office some money, as much as $20,000 to “mitigate” the problem you can get a permit. No change to the building plan is necessary, just cross their palm with silver and voila! you get your permit. All in all this is a far more “honest” fraud then EPA’s…

  13. ‘…There is no statute of limitations under the EPA’s theory of “continuing violation.” If the EPA says it’s a wetland, by golly, it’s a wetland, or was, and pay or please the EPA you must…’

    Boggles the mind. A very great protion of the state I live in, Illinois, was once wetland, and it is common to see standing water. In wet years the tractors can’t get into the fields, and wetland plants grow. Could they fine us all? Seems to be so.

  14. Gary, just hope that some government bureaucrat doesn’t ever see fit to annoy you. (Of course, that can’t happen to you besides you have recourse, right?).

    DAV, I’ve just paid $1,000 and taken several months to get permission from the bureaucrats to build a garage on my property. This could be seen as an annoyance or the price one pays for sharing life in a community. As for recourse, the hotheads in any population are a danger. I object to your implication that I am one. I’m really pretty mellow. Take a time out and no soup for you! 😉

  15. Gary,

    Gosh. Only $1000? You obviously don’t live near me. You find paying 1.5 times the average cost of a car per day a mere annoyance — just the price of modern living. Well, OK then. Again: just hope that some government bureaucrat doesn’t ever see fit to annoy you.

    Anyway, nice leap and thanks for the advice.

  16. In this case we see our aloof SCOTUS judging an overly aggressive Executive Branch run amok. The real clot in all this, however, is our pusilanimous Congress that has allowed/encouraged gross injustices.

    Congress could fix all this in a New York minute. They won’t. They created the problem in the first place, on purpose, for whatever sick puppy reasons they harbor in their fevered brains.

    Welcome to Fascist America.

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