Resourceful Earth posted a heart-wrenching video recently summarizing a case heard by the Supreme Court (SCOTUS) in which two landowners were pitted against the EPA. The case is somewhat complex but it deals with whether or not it is legal for the EPA to issue “compliance orders” requiring landowners to adhere to the EPAs interpretation of law without being able to challenge the EPA in court. My colleague Hans Bader explains:
The EPA has a practice of issuing “compliance orders” to property owners telling them to stop using their land and restore it to its prior condition, under penalty of $37,500 a day in fines, and declaring in such orders that such land is a federally protected wetland. It then waits months or years before actually suing the property owner for the fines, which accrue daily, potentially adding up to millions in fines. But in the meantime, it insists that the property owners can’t challenge its claim that their property is a non-usable wetland in court. If they want to take issue with its claim that their property is a “wetland,” they have to wait until the EPA sues them later on to collect those fines, after they’ve racked up potentially millions in fines under the compliance order.
Essentially, it was impossible to challenge the EPA on their interpretation without potentially accruing millions of dollars in fines and penalties. This leads to landowners often having to give up, because most Americans are unable and unwilling to risk millions of dollars in fines if they were to lose their case. Justice Alito cited the Competitive Enterprise Institute’s amicus brief in his opinion, writing that “far from providing clarity and predictability, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concerning wetlands can only be made on a case-by-case basis by EPA field staff.”
This is an important victory for property rights and a smacking down of regulatory overreach at the EPA. The Supreme Court ruled, unanimously (9-0), that the EPA is not allowed to do this. Not one single Supreme Court justice agreed with the EPA, as Greenwire ($ubscription) notes:
Justice Samuel Alito, in a concurring opinion, called on Congress to “do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”
In the meantime, “the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune,” he added.