A Solid Win for Property Owners from the Supreme Court

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A Solid Win for Property Owners from the Supreme Court

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Mar 22, 2012, 9:11am

The Supreme Court handed down a 9-0 decision yesterday that put some well-needed limits on the EPA's ability to hold property owners hostage over building on wetlands.

Under the Clean Water Act the EPA has the authority to issue compliance orders against property owners who it believes are doing something they shouldn't be doing to "wetlands," which at first blush sounds perfectly reasonable. The problem arises from the fact that the EPA has the power to designate your property as wetlands after you've already started to build on it, and the EPA claimed that you cannot sue them so as to sort everything out, all the while racking up penalties for every day that you fail to comply with the compliance order (the maximum penalty being $75,000 per day).

A unanimous Supreme Court held that property owners in such a situation have the right to bring suit under the Administrative Procedure Act against the EPA to have it determined whether their property is indeed wetlands under the Clean Water Act.

I've always contended that the worst aspect of federal regulation is not the scope of such regulation (although it is, in my opinion, too broad), it's that it is too open-ended. The powers that are wielded by federal regulators like the EPA are designed to take on very powerful entities like GE and ExxonMobil. Yet those same powers are more often deployed against average citizens who don't have one iota of the power that the federal government can muster.

This problem mostly arises from the extremely poorly written laws that Congress churns out every year. Environmental legislation might well be the worst exemplar of that. The ambiguity of legislation like the Clean Water Act leaves the agencies with far too little guidance as to what their mandate really is. And bureaucracies being what they are, they will define that mandate in the way that they deem to be best, which means that the enivronmentally-minded folks at the EPA are going to be far more zealous in pushing the boundaries of the legislation than the average person would be. This boundary pushing includes the powers they use to enforce the law as they've interpreted it.