Forget Obamacare, its online health-care records, death panels making decisions on your treatment and other privacy-invading provisions.
Forget the Internal Revenue Service agenda. As well as the National Security Agency spy programs.
It seems the most egregious infringement on Americans’ rights could come from the Environmental Protection Agency.
The EPA, according to critics in Congress, “intends to expand federal regulatory authority under the Clean Water Act to include even the most isolated wetlands, seasonal drainages, and prairie depressions.”
The proposed rushed change in regulations would assert “unprecedented control” over private property across the United States, opponents assert.
Several members of Congress and a legal team that won related battles in the U.S. Supreme Court against previous claims staked out by the EPA now are positioning themselves to oppose Washington bureaucrats pressing for the change.
According to Rep. Lamar Smith, R-Texas, the chairman of the Science, Space, and Technology Committee, and Rep. Chris Stewart, R-Utah, the chairman of the Environment Subcommittee, the proposal is a “sweeping reinterpretation of EPA jurisdiction would give the agency unprecedented control over private property across the nation.”
They warned the EPA in a letter that any “attempt to issue a proposed rule before completing an independent examination by the agency’s own science advisers would be to put the cart before the horse.”
The congressmen expressed concern that the expansion of the Clean Water Act “appears to represent a rushed, politicized regulatory process lacking the proper consultation with scientific peer reviewers and the American people.”
“If EPA has not already provided [the Science Advisory Board] with the proposed rule, the House Science Committee urges the agency to do so immediately. Under the law, the advice of scientific experts is a prerequisite, not an afterthought.”
Fox News’ judicial analyst Andrew Napolitano responded to the EPA plan with alarm.
“The EPA is redefining the meaning of the word water … so as to give it, the EPA, the ability to regulate every body of water in the United States … whether it’s a little stream or whether it’s a freestanding pond. They have done this by finding a bogus scientific study which said …. under the earth, way down in the bowels of the earth, all these bodies of water are connected to each other.”
Napolitano explained that when Congress wrote the Clean Water Act “it didn’t define water, so the Supreme Court supplied a definition of water.”
“And the Supreme Court’s definition of water for EPA purposes is it’s got to be connected to navigable waters,” he said.
That means, Napolitano said, if a property owner has a small amount of water on his property, he won’t be able to build near the water without federal-government approval if the regulation is implemented.
He called the $37,500 per day fine for defying the EPA “the most draconian fine for anything anywhere in the United States.”
Listen to Napolitano:
The issue of EPA control over water and private property was litigated just a year ago. The Pacific Legal Foundation represented an Idaho couple whose private property had come into the crosshairs of the federal agency.
Bureaucrats told Mike and Chantell Sackett the residential neighborhood parcel they bought for their home would have to be restored to pristine condition, then left alone for years, because the EPA considered it a wetlands.
The U.S. Supreme Court, however, slapped down the agency.
The EPA had told the couple that after they restored the land they would have to go through a ruinously expensive application process to even be considered for permission to use their own land.
Further, the EPA, affirmed by the 9th U.S. Circuit Court of Appeals, told the couple they could not even challenge the decision unless they went through the expensive process.
The U.S. Supreme Court reversed the 9th Circuit ruling, ordering that the EPA must provide a process through which a challenge to its decision can be addressed in a meaningful way.
Damien Schiff, principal attorney for the Pacific Legal Foundation, which represented the couple without charge, said the implications are clear.
“EPA is not above the law,” he said at the time. “That’s the bottom line with today’s ruling. This is a great day for Mike and Chantell Sackett, because it confirms that EPA can’t deny them access to justice. EPA can’t repeal the Sacketts’ fundamental right to their day in court. And for that reason, it is a great day for all Americans, for all property owners, and for the rule of law.”
Schiff said the justices “have made it clear that EPA bureaucrats are answerable to the law and the courts just like the rest of us. EPA can’t try to micromanage people and their property – it can’t order property owners to dance like marionettes – while denying them any meaningful right to appeal to the courts.”
“It can’t threaten property owners with financial ruin and not have to justify its threats to a judge,” he said. “And it can’t issue lazy, drive-by ‘wetlands’ edicts about private property. It will have to put in some honest work and use credible science, because the regulators must be able to justify their wetlands orders in a court of law.”
Mike Sackett said he and his wife were subjected to “hell” by federal bureaucrats.
“The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years. It said we could not go to court and challenge their bogus claim that our small lot had ‘wetlands’ on it. As this nightmare went on, we rubbed our eyes and started to wonder if we were living in some totalitarian country,” he said. “Now, the Supreme Court has come to our rescue, and reminded the EPA – and everyone – that this is still America, and Americans still have rights under the Constitution.”
In the Supreme Court opinion, Justice Samuel Alito said the scenario was one that most homeowners would say “can’t happen in the United States.” Justice Elena Kagan said it was a “strange position” for the government to adopt in insisting that the property owner has no right to a hearing on such an order.
Mike and Chantell Sackett
Justice Antonin Scalia criticized the “high-handedness” of the EPA’s demand that the couple turn their land into a protected preserve and install vegetation that wasn’t there before they started their project.
The Pacific Legal Foundation also won an earlier decision involving small amounts of water on private lands.
In Rapanos v. United States, the high court said for the Clean Water Act to apply, there has to be “a substantial nexus between his property and a navigable waterway.”
In arguments submitted by PLF to the EPA on the issue, attorney M. Reed Hopper said such reaches into the private property of Americans are “contrary to existing federal law and judicial precedent.”
The submission noted that the EPA defined “traditional navigable waters” as those on which “transport by boat alone is sufficient to establish federal jurisdiction.”
But PLF argued the requirement is for commercial navigation, not a simple canoe trip.
“Contrary to explicit Supreme Court directives, and established constitutional limitations, the guidance asserts federal control over virtually every pond, puddle, and ditch in the country as ‘tributaries’ or ‘other waters,” PLF said. “So broad is the putative reach of the government under this guidance that the agencies expressly refuse to exclude even artificial ponds and swimming pools from federal regulation.”
PLF called the EPA’s interpretation of the law “the largest expansion of power every proposed by a federal agency.”
“It would far exceed federal authority, usurp the power of the states to manage local land and water resources, and undermine our constitutional way of life,” the legal team said.