BrianGarst.com

Although somewhat limited in its application, today’s Supreme Court decision in Sackett vs. EPA is a victory for property rights and should serve as a shot across the EPA‘s bow. I’ll let Alito’s concurrence set the stage:

The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

We’ve still got a long way to go to restore basic property rights in this country, and the Sackett’s still have to fight the EPA on the merits of the case as they seek to disprove the claim that their own property is a “wetland,” much less a “navigable water” of which the Act supposedly deals, despite having no water. But at least now they have their Constitutional due process rights recognized*, so that they may challenge EPA’s jack-booted thugs in court without first having to rack up millions in fines waiting for EPA to allow them to do so.

*To avoid spreading misinformation, I should clarify that the court did not have to draw upon the Due Process clause, as they found a sufficient statutory basis.

Environmental Protection Agency EPA