Sackett vs EPA

[TGS]

If you're not familiar, Sackett vs EPA (http://www.huffingtonpost.com/2012/01/09/sackett-v-epa-supreme-court_n_1194155.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+HP%2FPolitics+%28Politics+on+ The+Huffington+Post%29) is a supreme court case challenging the legitimacy of an executive governmental organization being able to create regulation without recourse or involvement of citizens, unlike legislation.

One justice has commented calling the EPA's actions "outrageous." Come summer when the opinion is made, it looks like there might be a big change in the way executive organizations operate, and would likely change the way the BATFE does business.

comments?

[jlw]

The federal regulatory agencies typically have a comment period that allows for public comment on proposed regulations; however, that is all that is allowed: comment.

In both undergrad and graduate administrative law classes, I wrote on the topic of Congress' delegation of legislative authority to regulatory agencies. I proposed that Congress should have to take an up or down vote on any regulation that would have the force of law on a citizen.

I was told in each instance that members of Congress wouldn't be able to understand many of the proposed regulations...

[Mitchell, Esq.]

The federal regulatory agencies typically have a comment period that allows for public comment on proposed regulations; however, that is all that is allowed: comment.

In both undergrad and graduate administrative law classes, I wrote on the topic of Congress' delegation of legislative authority to regulatory agencies. I proposed that Congress should have to take an up or down vote on any regulation that would have the force of law on a citizen.

I was told in each instance that members of Congress wouldn't be able to understand many of the proposed regulations...

The Administrative Procedures Act and all the BS thereunder is congress's way of getting a pass on tough votes.

The agency does the dirty work, and congress just sits...blameless...

[jlw]

The Administrative Procedures Act and all the BS thereunder is congress's way of getting a pass on tough votes.

The agency does the dirty work, and congress just sits...blameless...


Exactly, except when they want to vilify an agency as a campaign issue...

[NETim]

Does anyone wonder why Congress is held in such utter contempt?

But who am I, a bitter clingerer, to object to their methods?

[Tamara]

I was told in each instance that members of Congress wouldn't be able to understand many of the proposed regulations...

Since when has Congress let a complete lack of comprehension stand between them and some vote-gettin' legislation?

We're talking about people who voted to ban a shoulder thing that goes up, after all.

[rsa-otc]

Since when has Congress let a complete lack of comprehension stand between them and some vote-gettin' legislation?

We're talking about people who voted to ban a shoulder thing that goes up, after all.

Worse than that, they don't even bother to read the legislation, Health Care Bill anyone. :mad:

[jlw]

Since when has Congress let a complete lack of comprehension stand between them and some vote-gettin' legislation?

We're talking about people who voted to ban a shoulder thing that goes up, after all.

I am simply reporting what the response was to what I wrote.

Whenever I hear a Congressman talk about an out of control regulatory agency, I always want to ask said Congress critter what body passed the enabling legislation for the agency and has the power to control it's jurisdiction.

[Tamara]

I am simply reporting what the response was to what I wrote.

No doubt! I was just trying to make a funny. :o

[TCinVA]

Legal experts can correct me if I'm wrong...but from what I remember from my administrative law classes erm...some years ago...the courts didn't seem to be in too much of a hurry to second guess the delegation of regulatory power to agencies.

[TGS]

Legal experts can correct me if I'm wrong...but from what I remember from my administrative law classes erm...some years ago...the courts didn't seem to be in too much of a hurry to second guess the delegation of regulatory power to agencies.

Which is why this case is significant, because it looks like the SCOTUS may be concerned....or, at least a few of the justices are.

[TGS]

Apparently, the SCOTUS ruled against the EPA.

Big development in limiting executive power, me thinks. I'm interested to see how this precedent will impact the ATF.

[Mitchell, Esq.]

Justice Alito, concurring.

The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the own- ers cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

The Court’s decision provides a modest measure of re- lief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.

Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule re- garding the reach of the Clean Water Act. When Con- gress passed the Clean Water Act in 1972, it provided that the Act covers “the waters of the United States.” 33 U. S. C. §1362(7). But Congress did not define what it meant by “the waters of the United States”; the phrase was not a term of art with a known meaning; and the words themselves are hopelessly indeterminate. Unsurprisingly, the EPA and the Army Corps of Engineers in- terpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, see Rapanos v. United States, 547 U. S. 715–739 (2006) (plurality opinion); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159–174 (2001), but the precise reach of the Act remains unclear. For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase. Instead, the agency has relied on informal guidance. But far from providing clarity and predictability, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concerning wetlands can only be made on a case-by-case basis by EPA field staff. See Brief for Competitive Enterprise Institute as Amicus Curiae 7–13.

Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.

Apparently, the SCOTUS ruled against the EPA.

Big development in limiting executive power, me thinks. I'm interested to see how this precedent will impact the ATF.


I'm sure someone will appeal to the UN...:p

It bodes...interesting...

[RoyGBiv]

Apparently, the SCOTUS ruled UNANIMOUSLY against the EPA.
Key word added...

Governing by regulatory fiat is total BS. It cuts the heart out of the notion of "representative government".
I'd lump "no fat in McDonalds fryers" into the same downward spiral.

If I can figure out how.... I'm starting a "Draft Paul Ryan for President 2012" campaign...
Pretty much every other critter in Congress seems to have jellied brains.

ETA: http://www.draftpaulryan.com/ :D

[NETim]

I just love it when the EPA (or any other Federal regulatory agency) gets slapped down.

The first order of business for any bureaucracy is the perpetuation of that bureaucracy.

They'll be back, overstepping their bounds once again.

[TGS]

Key word added...

I didn't want to rub it in ;)

I totally agree on the BS factor. Pretty unbelievable, actually, that it took this long.

[Shellback]

The EPA is completely out of control. Looking forward to how this will affect the BATFE as well.

[John Ralston]

Given that this revolves around a "Wetland" up in my neck of the woods, I thought I would toss out this little nugget that was reported on the news...

This decision only gives them the right to appeal the EPA decision (but the EPA can and probably will stay with their initial finding). It does not give them the right to build on their property. Not sure if that would be any kind of win.

[RoyGBiv]

Given that this revolves around a "Wetland" up in my neck of the woods, I thought I would toss out this little nugget that was reported on the news...

This decision only gives them the right to appeal the EPA decision (but the EPA can and probably will stay with their initial finding). It does not give them the right to build on their property. Not sure if that would be any kind of win.

The win part of this is that before today the land owners were not even entitled to their day in court.
More win to come, hopefully.

[John Ralston]

The win part of this is that before today the land owners were not even entitled to their day in court.
More win to come, hopefully.

Correct, but unless you have really deep pockets, taking the Gov. to court could still leave you with nothing in the end.

[RoyGBiv]

Correct, but unless you have really deep pockets, taking the Gov. to court could still leave you with nothing in the end.

That is the case with nearly any lawsuit. I've been involved in two civil suits... One personal, the other for my ailing parents (I suppose that's personal too, but I wasn't footing the bill). Lawyers get paid a retainer up front, then hourly fees that start at $200 and go up fast from there, plus expenses (photocopies at $1/page are not unheard of). Going up against the government or any business with in-house lawyers (who get paid a salary, not by the hour) is a VERY expensive proposition.

The US legal system is expensive regardless of whether you're fighting the government or a private individual, but, if you have a winning case it's worth doing. In both my two cases attorney fees were reimbursed by the other [losing] parties. Two different scumbags who counted on outlasting us so they could ignore their contractual obligations. "Loser pays" is a very necessary missing ingredient in US law.

This case has been funded largely via civil liberties associations and grass roots donations.
Donate here: https://www.pacificlegal.org/sslpage.aspx?pid=184

[Mitchell, Esq.]

Given that this revolves around a "Wetland" up in my neck of the woods, I thought I would toss out this little nugget that was reported on the news...

This decision only gives them the right to appeal the EPA decision (but the EPA can and probably will stay with their initial finding). It does not give them the right to build on their property. Not sure if that would be any kind of win.

The win was the ability to redress grievances with access to the judicial system at the citizen's initiation instead of merely responding to the government, not the substantive issues in the case.

[TCinVA]

The win is seeing the court actually tell Leviathan State that they do have to be concerned with that pesky triviality known as the Constitution.

It isn't much...but it's something.

Seeing the judiciary actually state that there are meaningful boundaries on the exercise of federal regulatory power is a huge shift, folks. Massive.