“This is what happens when an overzealous federal agency would rather force compliance than give any consideration to private property rights, individual rights, basic decency or common sense,” said the Sacketts’ home-state senator, Mike Crapo (R. Idaho) (Washington Post)
CHICAGO, January 10, 2012- Imagine this. You buy a vacant lot in a residential subdivision across the road from a small lake. The lot is zoned for residential building. It is surrounded by other homes and homes being built. You submit your plans and blueprints and receive a building permit.
You start grading the property to build a home.
The Environmental Protection Agency and Army Corps. of Engineers show up and accuse you of building on a “wetland”. The EPA issues what is known as a “compliance order”. You must stop all building. You must restore the land to its natural state. You must replace and plant trees. You must place a fence around the land and maintain the property in a pristine condition.
You have no right to a pre-enforcement challenge of the order. You must comply with the order or be sued by the EPA and face fines between 35-75 thousand dollars per day.
“Unlike other regulations and enforcement orders, the EPA under clean air and water laws can issue an order without giving the recipient a chance to challenge it in court before the agency initiates a lawsuit for noncompliance.” (IBT)
You are punished by being forced to spend money to correct an unproven accusation of a violation of the law- no probable cause or preponderance of the evidence. No way for you to prove or argue your case until the EPA decides to sue you.
This is at the heart of Sackett v. EPA. The Supreme Court of the United States heard arguments on this case today. A decision is expected by June. The case started in 2007 when the “compliance order” was issued. The case is based on very complicated, some say senseless, enforcement policies and procedures governing the Clean Water Act.
There is no room here to delve into all the details of this tortuous case. The Department of Justice is defending the EPA. The government is not claiming or arguing there was any imminent danger of environmental damage or danger. There is no argument made that pollution or wetlands are even a factor. The arguments are based purely on rights. Civil rights versus government agency procedures abuse.
The Sacketts are seeking the right to pre-enforcement challenges to accusations of violations. They claim their constitutional rights to due process are being violated by government policy and procedures. They want the Supreme Court to determine if the EPA is violating the Fifth Amendment of the Constitution by denying pre-enforcement challenges.
The Department of Justice, on behalf of the EPA, argues that under the law there is no right to challenge “compliance orders” until they are enforced. Even though the “compliance order” mandates correction and restoration based upon an accusation with no proof, evidence, or probable cause.
Another anomaly is the Justice Department argument that “compliance orders” are not orders. They are “compliance communications”. If that is valid why is it called a “compliance order” and not a “compliance communication”? Why are there orders mandating corrective action or else attached to a mere communication- a memo?
Scratching your head yet? So are a lot of other people. Legal scholars, special interest groups, politicians, and those who report on legal issues and the courts.
The EPA’s refusal to grant due process through pre-enforcement challenges and punish alleged violators was upheld by lower and appeals courts on several occasions. SCOTUS refused to intervene in those cases based upon the lower court and appeals courts rulings.
Why the court chose this particular case is a mystery. Some posit it was due to the complainants. They are ordinary individuals, instead of major businesses, property developers, or special interests. They may have evoked some sympathy from the court. But, they are being supported by some very heavy hitters through friend of the court briefs. General Electric and the American Petroleum Institute are two of those.
The Sackett case demonstrates why there is a very strong perception that government regulatory agencies are power mad and out of control; trampling on the rights of people and businesses and shredding the Constitution. They are costing people and businesses money and wasting precious tax dollars on legal wrangling. It is perceived they do more harm than good.
If the EPA’s mission is to ensure compliance they should not be a strictly punitive agency or perceived as such. They should bend over backwards to help people and businesses easily comply with their edicts. There should be a swift administrative or arbitration review process before any punishment is meted out- including corrections and restorations.
Basically they should not be allowed to make an accusation and demand corrections without due process of law. Unless there is some imminent danger to humans.
Our government is in draconian overseer mode. No one is overseeing the overseers. No one is watching the watchers. No one is protecting the constitutional rights or concerns of citizens and businesses against regulatory abuses. That is the perception. Perception is the new reality.
Maybe it’s time for a new consumer protection agency and czar to protect us from the predations of government agencies. An agency that can protect rights and prosecute civil rights violations. An agency that can regulate the regulators. An agency with a Civil Rights Division to protect Americans from governmental bureaucratic abuse.
Oh, we already have one? The Department of Justice?
Peter V. Bella is a retired Chicago Police Officer, freelance writer and photographer, cook, and raconteur. He likes to be the sharp stick that pokes and annoys. His opinions are his and his alone.
This article is the copyrighted property of the writer and Communities @ WashingtonTimes.com. Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.