Thursday, March 29, 2012

Finally, some good great news on both the property rights and limited government fronts


We had been meaning to get around to this but could not get off the dime. From last week:

After the excrable Kelo v. New London decision from the Supreme Court, we were in need of some good news on the property rights front and the same Supreme Court some 7 years on delivered a double whammy for property rights plus a smack-down of a seemingly unaccountable EPA in Sackett v. EPA .

When Mike and Chantell Sackett bought land in Idaho zoned for residential construction and acquired the necessary permits for building a home, they believed their dream of owning a custom-made house would become a reality. Instead, the EPA sent the Sacketts into a five-year nightmare of regulatory war over the supposed status of their lot as a wetland, and demanded that the Sacketts entirely undo their work on the land to comply with the Clean Water Act.

The Sacketts tried to appeal but were threatened with fines of up to $37,500 per day, and when they tried to go to court to appeal that, they discovered that the EPA had to allow them to go to court. The Sacketts sued in federal court, and yesterday finally prevailed in a unanimous Supreme Court decision that has far-reaching implications for the EPA and overreaching government intrusion.

Why wouldn't the EPA allow the Sacketts to go to court? Because the EPA claimed that the agency had not committed a "final agency action". If you are thinking that the EPA by fining the Sacketts upwards of $70,000/day sounds pretty "final" and definitely qualifies as "action", all nine of the Supremes agreed with you. Think about that for a moment: the EPA refused the Sacketts their constitutional right to appeal because the EPA had taken no action against the Sacketts... aside from that fine for every day they were out of compliance.

The EPA claimed they could keep the Sacketts in this bureaucratic limbo under the Administrative Procedures Act (APA). Scalia and the rest of the justices weren't buying it:

Nor did Scalia and the other members of the court buy the notion that a compliance order was just “a step in the deliberative process … rather than a coercive sanction that itself must be subject to judicial review,” as the Obama administration argued. Scalia points out that sanctions signal that deliberation has come to an end. Besides, Scalia wrote for the unanimous majority, the Sacketts had tried to get a hearing with the EPA, which the agency rejected – hardly a sign that deliberation over the issue had much of a chance of continuing.

How important was this decision?

Clearly, the EPA and the Obama administration offered a loophole that would have allowed the EPA and other government agencies to levy compliance orders without any oversight at all, had the Supreme Court accepted their arguments. That would have created a situation where defendants in these agency actions not only had to prove their innocence rather than the agency prove their guilt – it would have also left defendants with no opportunity at all to prove their innocence.

There's a reason why constitutional republics are, like, hard. Accountability, transparency, redressing of grievances and petitioning/appealing to a court of law and stuff like that normally gum up the works of a smoothly running, efficient, authoritarian form of government which we are learning more and more every day is the preferred operating mode of our political class.

Congrats, Supremes, on knocking that one out of the park.


B-Daddy said...

Thanks for taking the time to unwind this important story. It was a little hard to follow at first, but needed explanation. Of course, I agree that Kelo is one of the worst decisions ever. 9-0 smackdown? Maybe the Supremes will get used to making mincemeat of Holder's minions.

SarahB said...

We'll gladly take any and all good luck...especially with such a murky election coming our way.