The EPA vs. the Constitution

The Supreme Court prepares to hear a major Fifth Amendment case.

The Fifth Amendment to the U.S. Constitution declares that no person shall be “deprived of life, liberty, or property, without due process of law.” This means that if the government infringes on your rights, you are entitled to mount a timely and meaningful defense of those rights in court. It’s one of the cornerstones of our entire legal system, with roots dating back at least as far as the Magna Carta, which declared, “No free man...shall be stripped of his rights or possessions...except by the lawful judgment of his equals or by the law of the land.”

Unfortunately, the Environmental Protection Agency (EPA) prefers a less venerable form of justice, as the Supreme Court will hear next month during oral arguments in the case of Sackett v. Environmental Protection Agency. At issue is the EPA’s enforcement of the Clean Water Act through so-called administrative compliance orders, which are government commands that allow the agency to control the use of private property without the annoyance of having to subject its actions to judicial review.

The case started four years ago when a married couple named Mike and Chantell Sackett received an EPA compliance order instructing them to stop construction on what was supposed to be their dream home near Priest Lake, Idaho. The government claimed their .63-acre lot was a federally-protected wetland, but that was news to the Sacketts, who had procured all the necessary local permits. Their lot, which is bordered by two roads and several other residential lots, was in fact zoned for residential use.

The Sacketts contend that the compliance order was issued erroneously and they would like the opportunity to make their case in court. Yet according to the terms of the Clean Water Act, they may not challenge the order until the EPA first seeks judicial enforcement of it, a process that could take years. In the meantime, the Sacketts risk $32,500 in fines per day if they fail to comply. And complying doesn’t just mean they have to stop building; they must also return the lot to its original condition at their own expense.

Moreover, if they did eventually prevail under the current law, the Sacketts would then need to start construction all over again. By that point they would have paid all of the necessary compliance costs plus double many of their original building expenses. And who knows how much time would have been lost. Where’s the due process in that? The Sacketts understandably want the right to challenge the government’s actions now, not after it’s become too late or too expensive for them to put their property to its intended use.

For its part, the EPA argues that old-fashioned judicial review would simply get in the way. As the agency states in the brief it submitted to the Supreme Court, “A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regulated parties, by discouraging interactive processes that can obviate the need for judicial action.”

Of course, the whole point of due process is that people sometimes do have “the need for judicial action” against overreaching government officials. Why should those people have to give up that right to the EPA? More to the point, why should the Supreme Court allow it to happen?

As the Institute for Justice observes in the friend of the court brief it filed on behalf of the Sacketts, “If other governmental agencies were to adopt an enforcement mechanism like that used by the Environmental Protection Agency in this case, the constitutional guarantee of due process under the law would be severely harmed and the ability to own and use private property would be subject to the unrestrained and unreviewed orders of government officials.” There’s a term for that sort of unchecked government power, and it’s not interactive processes.

This case boils down to the protection of a fundamental constitutional right. It’s not about hamstringing bureaucrats or overturning environmental laws. The Supreme Court simply needs to ensure that the Sacketts—and all other property owners—get their day in court by ruling that administrative compliance orders are subject to judicial review. Due process demands nothing less.

Damon W. Root is a senior editor at Reason magazine.

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  • ||

    LOL @ "interactive process". None of my interacting with a govt bureaucracy are something I'd recommend experiencing.

  • El Duderino||

    Of course I'm sure you did not mean to insult those folks who enjoy being tortured by bureaucrats.

  • ||

    This case boils down to the protection of a fundamental constitutional right. It’s not about hamstringing bureaucrats or overturning environmental laws.

    No, it's about not hamstringing bureaucrats and not overturning environmental laws. Because that's the way they want it.

  • ||

    The interactive process is complete and utter discretion on their part. There are tons of people out there in violation of the CWS. If they had to go to court to make their case, they would make fewer cases. As it is, they basically have a shakedown racket. They get to cruise around and tell anyone they want what to do with their land.

  • Bingo||

    As it is, they basically have a shakedown racket. They get to cruise around and tell anyone they want what to do with their land.

    Pretty much. Before this was passed I actually had an acquaintance in the field telling me that it basically regulates every body of water larger than a stagnant puddle. And even then, the stagnant puddle would be under regulation if it possibly could be connected to a moving body of water at some point on the future or was connected to a moving body of water at some point in the past.

    I'm honestly not sure if he was exaggerating or not.

    Property rights are dead when legislation like this criminalizes everyone.

  • ||

    He wasn't exaggerating. The case law says the water doesn't even have to be there year around. If the place floods when it rains it can be considered a wetland and subject to 404 permitting. Basically nearly all of the buildings built in this country should have a 404 permit. But most don't. They can't. The act gives EPA completely arbitrary powers.

  • El Duderino||

    Doesnt the EPA understand fluid dynamics? If you build a house where rain water occaisionally settles, the rain water will just settle elsewhere.

  • Almanian||

    Yep, what John said - "not exaggerating".

    The EPA is one of the unconstitutional agencies that will get me to take up arms if it keeps going.

  • ||

    Just lure them in with your wetlands.

  • Almanian||

    I do have a stream running behind my house.

    "Heeeeeeere, kitty kitty kitty kitty...."

  • ||

    They can't resist wetlands. It's their Achilles' heel.

  • Old Salt||

    It's a good thing that they make anti-personnel mines watertight...

  • Radioactive||

    just like a frog's asshole!

  • The Dan||

    that's how my wife got me

  • Radioactive||

    by being watertight or a frog's asshole?

  • Bingo||

    Why isn't reason talking about SOPA today?

  • Bingo||

    Oh wait sounds like the vote is probably going to be tomorrow, nevermind.

  • ||

    Well, then let's talk about FUPAs instead. Specifically Tulpa's.

  • Bingo||

    Wow, looks like I just found a new coffee mug.

  • ||

    Be honest. You only drink Mountain Dew, ironically. After you get to work on your fixed-gear bike.

  • Bingo||

    Please, Diet Mountain Dew. What, You think I would allow simple sugars into my bloodstream like some bourgeois patron of Wal-Mart?

  • ||

    Right, right. My error. Here, would you like this can of PBR?

  • Old Man With Candy||

    Fuck that shit, HEINEKIN!

  • ||

    He drinks Mountain Dew because the color of the can matches his Kosciuszko Walkathon 2010 t-shirt.

  • ||

    And it looks great when it gets on his handlebar mustache.

  • Bingo||

    Please, the stache is 100% libertarian, you all are just jealous that you didn't think of it first.

  • ||

    Yeah, but your neckbeard isn't, and it's quite threatening.

  • ||

    "Yeah, but your neckbeard isn't, and it's quite threatening."

    The handlebar stache would really go well with a monocle.

  • Joe Zilch||

    Holy crap! I didn't realize I was two beards away from being the most trusted bearded man.

    Thanks for that awesome reference.

  • Mensan||

    I'm actually one beard LESS threatening than the neck beard.

  • Bingo||

    Actually the walkathon shirt would match my white iPhone, good find John!

  • ||

    Put it with your ironic 70s running shorts, knee socks and chuck taylors and you have an entire outfit.

  • ||

    Chuck Taylors? What, are your throwback Asics Mexico's in the wash?

  • Bingo||

    What is this, 2007? Everyone knows that Tom's are the go-to shoe for hipsters everywhere.

  • ||

    white iPhone

    ARRGGGHHHHHHHHHHHHH

  • Mensan||

    Wait a minute ... are you saying drinking Mountain Dew is hipsterish now? I drink (way too much) Mountain Dew all the time. Please don't tell me the smelly hipsters are ruining that for me.

  • R||

    Mtn Dew is properly the province of geeks and nerds. Hipsters can go fuck themselves.

  • John C. Randolph||

    Nah, mountain dew isn't nearly pretentious enough for hipsters. They drink coffee.

    -jcr

  • Tulpa's jizzed up FUPA||

    I told Romney to aim for my face!

  • ||

    You think I'm following that link? Not on your life, sir.

  • ||

    It's OK, Tulpa. It's just Urban Dictionary. Don't be afraid...click the link. Click it!

  • Bingo||

    Tulpa is afraid he might be exposed to humor, can't let that happen.

  • ||

    I heard it does to him what water did to the Wicked Witch. Which is ironic considering that he has his own stable of flying monkeys.

  • Almanian||

    I'm guessing they're housed in a place that rhymes with "his ass"?

  • Apatheist||

    You're going to feel really bad if it turns out that Tulpa was raped by Urban Dictionary.

  • Almanian||

    So Urban Dictionary is really Jerry Sandusky?

    THE HORROR!

  • ||

    Only to those 14 and younger.

  • El Duderino||

    The EPA has banned farting under pelicans asses.

  • ||

    They should call it dude process. As in, "Dude, process? We don't have any."

  • Mike M.||

    And for some reason, it seems like the folks out west get terrorized the most by these thugs. Rural California has apparently been getting it quite badly lately. The bureaucrats now have no compunction about trespassing on peoples' private lands unannounced without warrants.

    I have a dream that the next president comes in, and as his very first act shuts down the EPA, fires everybody in it, and takes a wrecking ball to the empty building. No other single act would create more jobs and freedom in this country so quickly.

    It'll obviously never happen, but I can dream.

  • ||

    Most of the major acts are administered by the states anyway. All the EPA ever does is swoop in and make things worse than the states have already made them.

  • Barely Suppressed Rage||

    I practice environmental law with a large, international law firm. So of course, I have no opinion on this issue.

  • ||

    I practiced it with a mid sized firm. We did 404 permits and land damage suits.

  • Eduard van Haalen||

    You couldn't find the permits?

  • ||

    They were found in a junkyard in Iraq.

  • ||

    The Fifth Amendment to the U.S. Constitution declares that no person shall be “deprived of life, liberty, or property,, without due process of law.

    There are people out there trying to hurt the US. We must deprive them of life when necessary, liberty when necessary, and property when necessary.

    The Constitution isn't a death pact against the US. They shall not have a blank check to harm this country.

    Sound about right for these days?

  • ||

    This really all started and ended with the case that said you didn't need a warrant or probably cause for an "administrative search". Once the bureaucrats were no longer subject to the Constitution, we were fucked.

  • ||

    ""Once the bureaucrats were no longer subject to the Constitution, we were fucked.""

    And the funny thing is that the Constitution applies to government more than the citizen. Free speech isn't the right of the people per se, it's based on the restriction of government, "Congress shall make no law". Once the government wins the arugment that the Constitution doesn't apply to them, the game is over.

    I know John, I'm preaching to the choir. ;-)

  • El Duderino||

    Ahhh leh loo yaaah!

  • Almanian||

    That was scarily well done, TV

  • Gojira||

    The Constitution isn't a death pact against the US. They shall not have a blank check to harm this country.

    You'd be amazed how often I heard this at a recent survivalist convention where I was manning a booth for the LP.

  • ||

    Shame on this married couple for not being a large corporation.

    I used to work in a Boeing facility that was built on top of wetlands. Actually, it would be more accurate to say it was built on top of a f'ing marsh, complete with cattails, lilypads, and salamanders. During the earthquake of '01, the building felt like it was built on top of a cake pan full of Jell-O.

    The county initially complained about the build site and wanted it declared wetlands. And in their defense, it was wetlands. It was one step up from being the Everglades. Boeing said, "Meh, we'll build some culverts. Approve our construction plans or we'll consider moving some assembly lines out of state."

    And whaddya know? Everything approved! Move along! These aren't the droids you're looking for! Three large office buildings right on top of the marsh, with culverts and ditches and raised walkways all over the place.

    But see, that's OK when you've got an army of lawyers at the ready, and you threaten to take your big toys and go home to another state.

    That's the number one reason it's hard for me to take the government seriously. Environmental protection, my ass. They're bullies who shake down small-timers while wetting their Underoos if they get a call from the general counsel of a large, corporate polluter. Just like the IRS, who audits the little guy while winking at corporate evaders. Or any of a couple dozen other agencies who seem to lose all their balls when they're attacking an enterprise larger than a lemonade stand or a pot dispensary.

    Essentially, the difference between our government today and an old-school Mafia shakedown racket is that our government has nice letterhead stationery.

  • ||

    Boeing is a rent seeking atrocity.

    The EPA is infinitely more more evil.

  • Jerryskids||

    Essentially, the difference between our government today and an old-school Mafia shakedown racket is that our government has nice letterhead stationery.

    No, the difference between government and the Mafia is that the Mafia has no interest in killing the goose that lays the golden eggs; the Mafia is not going to take more in protection money that you can afford to pay. And when the Mafia protects you, you stay protected.

    Stupid Mugger
    Notice the guy was more afraid of the Mafia than of the cops.

  • ||

    If Ron Paul manages to become president, I hope to God that the first thing he does is pen and issue an executive order amounting to a scathing verbal evisceration of the EPA and its mandate, its justifications for existence and function, and its actions. This order would also command that all EPA activity cease immediately, and that further operation is entirely prohibited.

    He'd then rape Congress violently and shake the stale framework of the federal government and somehow get Congress to abolish the agency.

    He'd then do the same with 95% of all other governmental entities.

    /Pipe dream

  • ||

    I wouldn't go quite THAT far. I do think there's a need for some government regulation due to "externalities" that being said, we are WAY past the point where it makes sense...

  • DK||

    Externalities - what a cover-all term you've got there. Care to give some bounds? When did we pass "the point where it makes sense"?

  • ||

    Well, of course it is; he's a racist.

    Well Tulpa and Rev. Blue Cheese and CN said so.

  • ||

    When you've given trying to convince shitheads that Ron Paul's not a racist, tell them you'll take a constitutionalist with anti-Semitic sentiments over a monstrous reverse-racist whose very moral, ideological core makes him the bane of prosperous and functional civilization any fucking day of the week.

  • Mensan||

    What the hell is a "reverse-racist"?

  • ||

    no such thing

    it's based on the stupid notion that racism = people of privilege against people of color

    iow, if it doesn't fit that narrative, it is the rarely seen "reverse racism"

    racism is racism. whether or not it's "oppressor class" doing it or receiving it

  • J_L_B||

    You obviously haven't read the columns of Leonard Pitts, Jr., your garden-variety "life sucks pretty bad for black people everywhere in America" writer.

    Every so often he'll dismiss an accusation of racism against blacks by insisting that only those with dominant political power can be racist.

    While real racism is the belief in the superiority or inferiority of a particular race, without concern for which is the majority/minority, this alternate incorrect defintion is mostly unanimous among the left.

  • RandomReal[]||

    Just wishing that government bureaucrats and politicians had the same civil liabilities that employees and owners of corporations do.

    --Never happen though.

  • first||

    Say hello to Erica F, the very first Portuguese girl to join Team Hegre!

    Erica is what you would describe as a natural blond bombshell. She’s super tight, toned and perky - almost like she has been chiseled out of marble. Erica also has the marvelous quality of being petite but curvy, and it has to be said she has the most incredible ass.

    Erica just loved strutting her stuff in front of the camera and is a natural born poser. Erica is new to erotic modeling but says that she loves the job. Erica also loves dressing in sexy clothes and high heels. She enjoys turning heads wherever she goes. But we are sorry to have to break the bad news to you - this gorgeous girl is already married.

    She may just be starting out but Erica F is sure to go far!

  • ||

    I read this before this is sad teh burden of proof is on the defendant not the plantiffs, this is backwards he who makes the charge must prove his side. couldn't they just send a bill to the congress who are responsible for the dept that are set up? this would force them to challenge it and you could do like other bill collectors do. by the way humans are not meant to rule over others, that is why gov always become oppressive and cruel and unfair. humans were not designed to rule others, they can't even rule over themselves let alone others. jeremiah 10:23 ecclesiates 8:9

    seabird

  • jimpeel||

    "The government claimed their .63-acre lot was a federally-protected wetland ..."

    Priest Lake is 26,000 acres and the government still didn't have enough control.

    If one Canada Goose uses one square meter of area to occupy while resting on a body of water, Priest Lake would have enough area to accommodate 105,218,266 geese.

    The Sackett's .63 acre could only accommodate 2,549 geese with one important hitch.-- there is no water on that .63 acres. It is all dirt and is landlocked.

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