J. D. Heyes
January 17, 2012
Stories about overreach from Washington, D.C. abound, but just when you think you’ve heard them all comes yet another that makes you shake your head in disbelief and wonder just whom is supposed to be working for whom in this grand old Republic of ours.
Taking into account that most of us want clean air, fresh water to drink and a sustainable environment – and that government has a role to play in ensuring these resources are preserved – there comes a point where that role grows well beyond its original intent and begins to infringe on the constitutional rights of the citizens. Just ask Mike and Chantell Sackett,who are battling the leviathan Environmental Protection Agencyjust to be able to build a home on land they bought years ago in Idaho.
They bought all of the permits. They spent thousands of dollars preparing the land. But just as they were ready to begin construction, the EPA swooped in, pronounced their property a wetlands (even though it sits in the middle of a residential neighborhood that contains sewer lines and scores of other homes) and issued a compliance order calling on them to return the land to its original state or face daily fines of $37,500per day.
And here is where the comedy of errorsreallybegins.
Surely officials at the EPA would be reasonable, the Sackett’s thought. After all, there were homes surrounding their plot of land. There was infrastructure. And they’d done everything they were supposed to do to “comply” with all of the rules. With all of that in mind, they appealed to the agency for a hearing on the issue. But instead of hearing the couple out, EPA officials blew them off, rejecting their appeal out of hand. So, with little alternative, the couple decided to take the plunge, hire some lawyers and sue the EPA to get the agency to listen.
The agency’s response? The EPA said the couple wasn’t allowed to sue. Huh?
On the one hand, the agency was arguing that it wasmore than capableof handling complaints like that of the Sackett’s through its “administrative process.” But on the other hand, it wasn’t giving the coupleaccessto its administrative process: A classic Catch-22.
As if that outrage wasn’t enough, the agency then tried to claim that no one has the constitutional right to bypass a compliance order and go straight to federal court for relief. So, no right to appeal, and no right to sue.
Throughout, the EPA maintained that the couples’ land indeedwason a wetlands so, undaunted, the couple took the economic plunge anddidbring their case to federal court where, in the end, it wound up before the U.S. Supreme Court. And there, the tragic comedy continued.
Justice Elena Kagan, a former solicitor general and one of the high court’s most liberal members, took the EPA’s side. Oblivious to the fact that the EPAdeniedthe Sackett’s initial request for an appeal, Kagan asked, “Couldn’t you have gotten the legal determination that you wanted through that process?” Attorneys for the plaintiffs patiently explained that process was prohibitively costly and time-consuming – especially since they didn’t live in a wetlands area to begin with.
The good news is, at least some of the justices were empathetic to the Sackett’s plight, seemingly realizing the daunting task they faced in trying to get an unresponsive system to be…responsive.
“Don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” Justice Samuel Alito asked Justice Department attorney Malcolm Stewart.
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