A sleepy fen, hosting a diverse mix of unusual flora and fauna that is located next to a major river clearly qualifies as a jurisdictional wetland. That’s the kind of ecosystem that the wetlands program was designed to protect. On the other hand, a few cat-tails growing in a pair of tire ruts that lead to a drainage ditch that empties into a creek that feeds a small river that eventually leads to a navigable waterway isn’t a wetland in any ecological sense, except in the view of overly zealous EPA personnel.
Though this decision provides some relief, there’s still a long way to go to restore some kind of equity between the rights of property owners and legitimate environmental protections. Doing so will require Congress to restore some balance, something that it has been notoriously reluctant to do whenever the green lobby gets involved. Alito took a well-deserved (in the author’s opinion) backhand slap at Congress in his opinion.
“The court’s decision provides a modest measure of relief,” he added. “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 regarding the reach of the Clean Water Act.”
Yet, even if Congress dares to mildly offend environmentalists by restoring some sense of reason to the Clean Water Act, there would still be much work to be done in other areas if the EPA’s tyrannical authority is to be taken down a peg or two. The particular wording of the Clean Water Act allowed the court to rule such that future petitioners in wetlands cases can appeal to the judicial systems for access to due process. This is not so in the case of other environmental statutes. For example, the Supreme Court previously ruled in Employers Insurance of Wausau v. United States that access to judicial due process was not required under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) until the EPA completed its review. Timely access to due process is therefore a matter of the underlying statute in other words, not a universal right.
Thus, the Sackett case is a relatively small skirmish in the larger war to roll-back EPA’s vast authority. There are more battles ahead and – sadly – most of them involve Senators and Representatives that are ill-equipped to understand the complex issues at hand and unwilling to offend environmental activists when they do.
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