Today the Supreme Court will hear oral argument in Sackett v. EPA, one of the most important property rights cases to reach the Court in recent history. The case involves a complicated statutory scheme created by the Clean Water Act (CWA), which (as relevant here) is enforced by the EPA.
In brief, the CWA seeks to protect the “navigable waters of the United States” against pollution. What makes this case interesting and entertaining (at least for observers) is that the EPA has interpreted the term “navigable waters” to include in some cases (quite paradoxically) “land,” called a “wetland.” The definition of a “wetland” is a matter of great complexity, one that even expert geologists and hydrologists can find daunting to apply consistently (let alone with unanimity), but does require at least some connection with water, however brief and infrequent. The EPA can enforce the CWA by issuing an order to an alleged offender to cease polluting a wetland and to remedy any violation, or by bringing a civil lawsuit against the alleged offender for the same relief. The CWA authorizes a $37,500 per day fine for violating the CWA by polluting a wetland without a permit, a fine that can be doubled if a court finds that the alleged offender also violated an EPA order to halt the pollution.
Nearly five years ago, the Sacketts sought to build a home on an undeveloped lot in a subdivision with houses on almost every other lot surrounding their property. The EPA issued them an order stating that their property was a wetland and directing them both to cease further construction and to remedy the harm already done. The Sacketts disagree with the EPA and ever since have sought to have a federal court resolve this dispute. So far, they have failed. Now they have a shot at persuading the Supreme Court that a federal district court should referee this dispute. The Sackett case involves the question whether a property owner – here, the Sacketts – can obtain judicial review of an EPA wetlands order even though the EPA itself has not brought its own lawsuit.
Philosophers and linguistic scholars probably could write Ph.D. dissertations on the meaning of the statute and EPA’s regulations ( e.g. – “The Hermeneutics of the Clean Water Act”), and on the metaphysical concept of how “water” actually can include something that, at least in part (and sometimes that part can be 99%) is “land” (e.g. – “The Greeks Were Wrong – It is Just Air, Fire, and Water, Not Earth”). The Sacketts, the Department of Justice and EPA, and a variety of amici already have filled a good-sized briefcase with briefs arguing about the proper meaning of the various soundly-based or thoughtlessly-drafted, neatly intersecting or hopelessly conflicting, eminently sensible or mind-numbingly irrational (all depending on your point of view), provisions of the CWA. But what is worth considering for the average person (read: someone whose mind has not been polluted by legal training) is this: How far we have come from the actual problem that Congress sought to remedy in this law? And how did we wind up in this predicament?
Congress enacted the CWA to deal with factories using pipes to dump staggering amounts of potentially-hazardous pollutants into the nation’s rivers, threatening the quality of the nation’s riverways and drinking water, and the lives of its people. Congress could have dealt with this problem by vesting in the federal courts the power to devise a form of federal common law governing interstate pollution of the nation’s waters, a common law that would be used in tort actions resembling well-known products liability actions. Instead, Congress dealt with this problem by enacting an admittedly complicated statutory scheme that empowered a federal agency — the EPA — to issue regulations to control such practices for the betterment of the public and to see to the enforcement of such regulations. Each approach has advantages and disadvantages, and reasonable people can differ over how best to resolve this problem.
What reasonable people cannot differ over is this: It impossible to believe that any Member of Congress could have imagined that the CWA would apply to a case like this one. The CWA deals with “navigable waters”; this case deals with “wetlands,” which, although not always “wet,” always are “land.” The Sacketts are not Fortune 500 companies running factories that daily pour out thousands of gallons of RBS (the acronym for what in the trade is known as Really Bad S#*t) into a river used downstream for drinking water; the Sacketts are private parties who want to build a home on their property in a partially completed subdivision. Yet, this is where the current state of environmental law leaves us. Regardless of the outcome of this case, we ought seriously to consider thinking twice before passing another complex federal law that, while noble in its intent, leaves private citizens facing a crushing burden of potential financial liability merely for trying to stand their ground before the federal government. Private citizens should not be forced into bankruptcy as the penalty for pursuing what has been called the “American dream.”
The Sackett case resembles a game of dominoes – or perhaps the childhood game of “telephone” – because where we are today in no way resembles where we started. Yet, I doubt that anyone who ever played either game stood a chance of being hammered with a penalty of $75,000 per day, over what now is nearly five years worth of days, just for losing. The Sacketts do, and that is a shame in a society that believes in law and justice.