March 23, 2012 in Opinion

Editorial: EPA ruling strikes blow for people’s due process

 

Mike and Chantell Sackett won one for the little guy Wednesday in the U.S. Supreme Court.

Even those who support the mission of the U.S. Environmental Protection Agency, Wednesday’s loser, should applaud any decision in any court that expands the application of the Fifth Amendment’s due process clause.

And process was the issue before the nine justices, not whether the Sacketts violated the Clean Water Act in 2007 when they filled a depression on their Bonner County property. The EPA says the depression is a wetland and therefore a “navigable water” as defined under agency regulations.

The EPA issued a compliance order that the fill be removed, exposing the couple to an initial fine of $37,500 per day, and double that if they failed to comply. The Sacketts, with no way of challenging the order administratively, responded by suing in the U.S. District Court for Idaho. Their claim was dismissed, based on a finding that the CWA did not allow for a judicial review of an EPA order.

The 9th U.S. Circuit Court of Appeals agreed, which landed the Sacketts in Washington, D.C., in January with their attorneys from the Pacific Legal Fund. During a hearing, the Supreme Court justices from right to left ideologically expressed some disbelief at the predicament the Sacketts faced.

That unity came through in the form of Wednesday’s unanimous ruling for the Sacketts, who are by no means out of the woods. They must prove their property a short distance from Priest Lake is not a wetland and therefore not subject to EPA jurisdiction.

As the Supreme Court noted in a 2006 case, the EPA and U.S. Army Corps of Engineers have adopted a very broad interpretation of the word “navigable,” extending their jurisdiction over virtually anything wet that flows into or is adjacent to a truly navigable waterway like Priest Lake. The rationale, which the court has accepted, is the protection wetlands provide by absorbing and cleaning runoff.

The Sacketts are not the first Inland Northwest residents to puzzle over an EPA finding that some portion of their property is a wetland, even if just intermittently, and therefore not available for development. In the face of $37,500-per-day fines, the point is often too expensive to argue.

“Only clarification of the reach of the Clean Water Act can rectify the underlying problem,” wrote Justice Samuel Alito.

Such an effort was launched last month, but by a lawmaker – Sen. Rand Paul, R-Tenn. – who would overly constrict the law’s application and would require that landowners receive twice the value for whatever loss suffered as a result of an environmental “taking.” It’s also not clear how his legislation’s emphasis on state input would affect waterways that flow through multiple states.

Paul issued a statement welcoming the Supreme Court’s ruling in the Sackett case, as should anyone of every political persuasion who wants a fair fight according to due process, not an incontestable order from the EPA or any other government entity.

To respond to this editorial online, go to www.spokesman.com and click on Opinion under the Topics menu.


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