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 -Â–
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.