Sackett v. EPA: The Battle Is Won, but the War Is Just Beginning

Erika Johnsen

4/13/2012 11:35:00 AM - Erika Johnsen

Last month, the Supreme Court righteously defended due process and private property when they unanimously ruled against the egregious regulatory abuses of The Government in Sackett v. EPA. It was a definitive victory for the freedom of the individual over the whims of a power-tripping bureaucracy, and we should take it as such. However, most unfortunately for the Sacketts, the Idaho couple the EPA targeted after arbitrarily deciding that their half-acre plot should become a 'protected wetland' in 2007, their troubles are only just beginning. Their Supreme Court debut only determined that the Sacketts did indeed have a right to seek judicial review in fighting the EPA's administrative compliance orders. As PERC explains, the day the Sacketts actually get to build their house and be left the heck alone is likely to be a long time coming -- not to mention the immeasurable opportunity costs the EPA is instigating with such a massive waste of everybody's time and money.

Mike and Chantell Sackett were stuck. Complying with EPA demands meant paying to throw away their property. If they ignored the EPA they would be liable for massive fines that would obviously bankrupt them and they could be subject to criminal liability. ...

While the Sacketts gained satisfaction and a bit of fame from a Supreme Court win, don’t bet they ever get to build their house. Unless EPA rolls over, the Sacketts have merely won an administrative point. It may be back to the same agency and courts that spit on them before.

Some years ago beachfront property owners in California and South Carolina won noteworthy victories against state agencies that basically took their property via the regulatory process. The agencies were not pleased that mere citizens embarrassed them before the high court and then drug the parties through the administrative mud for years after the high court decisions. The final results were not the “victories” for the abused citizens that we tend to presume. Agencies have the taxpayer purse to finance their proceedings and more litigation. Homeowners such as the Sacketts have pockets a bit less deep.

As Justice Alito noted in this case [PDF], “real relief” must come from Congress. The Clean Water Act does not contain clear rules regarding procedure. No one really knows what is a wetland. The EPA takes advantage of the lack of clarity and, like any bureaucracy, grabs power. This is the 40th anniversary of the Clean Water Act. As Congress has not seen fit to clean it up over the decades, it is unlikely to do so now.