On Monday, the U.S. Supreme Court will take up the somewhat tangled case of Mike and Chantell Sackett , whose plans for their property in Idaho ran afoul of the Environmental Protection Agency's definition of what a wetland is. Business groups are lining up to support the Sacketts' attorneys' contention that the EPA is a bunch of narrow-minded tree-huggers who don't care about the grand American tradition of property rights -- they just want to seize control of everyone's land.
As the New York Times noted in a story about the case, the whole thing "started as a routine disagreement about whether the Sacketts needed a Clean Water Act permit to build their dream home on the site (but) has morphed into a high-stakes legal battle that has reached the nation's highest court."
This fight involves a tiny amount of land -- slightly more than half an acre, purchased for $23,000. The site sits several blocks from a lake, which means it's near enough to see water without the owner paying big bucks for waterfront land. But when the Sacketts began pouring fill into the low-lying property, two EPA employees and an employee of the U.S. Army Corps of Engineers.
They told the Sacketts that what they were filling was classified as a wetland, and because they had not gotten a permit under the Clean Water Act to dump anything in their wetland, they must stop work remove the fill and restore the land by adding suitable plants. The penalty for not complying could be fines of up to $37,500 a day.
The Sacketts stopped work, but then filed suit, challenging the EPA's classification of the property as a wetland.
"I think EPA are bullies," Mrs. Sackett told the New York Times. "They come in and do what they want -- and intimidate you."
The EPA contends that the Sacketts were unlikely to face such stiff fines even if they lost, and that the warning wasn't any sort of a final order -- and thus could not be challenged. So far, judges have sided with the EPA.
"A Boise-based trial judge whom President George H.W. Bush appointed and the 9th U.S. Circuit Court of Appeals both concluded that a lawsuit is premature until regulators begin enforcement, such as by imposing the fine," a McClatchy Newspapers story reported. "Simply warning that a fine is possible, so far, isn't enough to allow a Clean Water Act challenge into court.
But that hasn't stopped big business and anti-EPA groups from promoting the Sacketts as little Davids taking on a bureaucratic Goliath. Among the groups that have filed amicus briefs on their behalf are U.S. Chamber of Commerce, the National Association of Homebuilders, National Association of Manufacturers and American Petroleum Institute.
It hasn't stopped there. Noted the Los Angeles Times, "The Idaho couple appeared three times on the Lou Dobbs program in 2011 and testified at an October hearing organized by Sen. Rand Paul (R-Ky.) to explore the "government's assault on private property."
"We need to take the government back from unelected bureaucrats," Paul said.
What the Supreme Court will do about this remains to be seen. Notes McClatchy, "All five appellate circuits that have considered similar cases likewise have rejected pre-enforcement lawsuits such as the one the Sacketts filed. This unanimity among appellate circuits made the Supreme Court's decision to hear the case somewhat surprising, prompting speculation that the high court's conservative majority is determined to go in a different direction."
The Supremes have a poor track record on this issue, though -- in fact, their decisions on two previous cases were so murky that Clean Water Act sponsor John Dingell once described them as a "bungle."
Those two cases, Rapanos vs. U.S. and SWANCC vs. U.S., "produced a broad consensus of opinion, virtually unheard of when it comes to wetlands regulation, that the Supreme Court had made things worse, rather than better," a legal scholar told the New York Times last year.
Makes you wonder if the justices have ever bothered to read the Congressional Record from the 1972 debate over the Clean Water Act -- the debate where a Republican supporter of the bill, Tennessee Sen. Howard Baker, argued that a clean environment was more important than anything else, asking “If we cannot swim in our lakes and rivers, if we cannot breathe the air God has given us, what other comforts can life offer us?”