# EPA Loses Major Supreme Court Decision on Wetland Enforcemen



## shaug (Mar 28, 2011)

http://www.dcbureau.org/201203227103/na ... ement.html

A unanimous Supreme Court ruling yesterday in favor of Mike and Chantell Sackett marks a significant victory for private property advocates. It also represents one of the biggest wins for the Pacific Legal Foundation (PLF) in its 30-year history as a nonprofit law firm working to rollback environmental laws and advance a broad conservative agenda.

For the PLF, the story of an Idaho couple getting strong-armed by the Environmental Protection Agency while trying to build their dream home represented far more than the interests of a single family and their dashed American dream. It was textbook PLF.

For three decades the foundation has targeted environmental regulations. The Justice Department argued that it could tie up enforcement of wetland regulations in courts for years.

Damien Schif

The case fit with the PLF's mission of defending personal property rights. It also offered an ideal chance to chip away at what Damien Schiff, lead attorney in the case, called a "significant expansion" of powers by the EPA and the Army Corps of Engineers over the past 25 years.

"Our mission is to protect private property rights," Schiff recently told DCBureau.org. "It's not surprising that we run up against the cause of the infringement which is usually an environmental regulation and more frequently dealing with wetlands."

EPA inspectors halted construction in 2007 on the Sackett's lakeside property because of a wetland designation. If they did not comply, the couple was subject to $75,000 fines per day. They sued the EPA essentially to challenge the compliance order, which they were previously denied. The Supreme Court's ruling now makes such orders immediately subject to judicial review rather than after the enforcement action takes place.

The Justice Department in its argument defending the EPA said the case could allow corporations to tie up environmental orders in court. EPA issued more than 600 compliance orders under the Clean Water Act in 2010 and more than 1,300 overall. The real winners are the business interests - the mining, logging, real estate and oil companies that are most often affected by the Clean Water Act.

Schiff said the ruling Wednesday shows the EPA is not above the law. "That's the bottom line with today's ruling," Schiff said in a written statement. "It is a great day for all Americans, for all property owners, and for the rule of law."

"EPA can't try to micromanage people and their property - it can't order property owners to dance like marionettes - while denying them any meaningful right to appeal to the courts. It can't threaten property owners with financial ruin and not have to justify its threats to a judge. And it can't issue lazy, drive-by 'wetlands' edicts about private property. It will have to put in some honest work and use credible science, because the regulators must be able to justify their wetlands orders in a court of law."

The Sackett's empty lot

The government had argued that giving property owners a hearing would limit the agency's ability to immediately stop violators. But in the opinion written by Justice Antonin Scalia the court said it believed those abilities would still be preserved. Justice Samuel Alito in a joint opinion said it was "unthinkable" the Sacketts and other property owners could not sue the EPA. "In a nation that values due process, not to mention private property, such treatment is unthinkable," Alito wrote.

Sympathies run deep

It is easy to feel sorry for the Sacketts, but far less deserving of sympathy are the corporations that stand to benefit from this and other cases PLF has advanced over the past 30 years. The firm got its start in the early 1970s with major victories in cases that benefited utility companies without representing them directly. It now employs 50 attorneys - five on environmental matters - with offices in four U.S. cities.

PLF files dozens of amicus briefs each year in favor of corporations such as Monsanto and Wal-Mart, arguing against everything from cattle rustling to affirmative action and the federal health reform law. Endangered species and wetlands are their two main environmental targets. They supported school voucher programs and the free speech rights of pharmaceutical companies.

For the corporations and individuals that donate to PLF, their contributions support a vital legal defense for their causes without having to wage battle themselves or even be named in a lawsuit. And they can do it anonymously. PLF discloses none of their donors either by request or on the nonprofit's IRS 990 Forms.

Those forms do reveal, however, that PLF earned $14 million in 2010 - the most ever in its existence - and it spent about $7 million on expenses. Some of its revenues come from events such as its spring gala in April with a keynote address from conservative Fox News correspondent John Stossell.

In another landmark environmental case, PLF defended the mining company Couer Alaska in the Supreme Court over another case involving a wetland, this time in a remote section of southeast Alaska. The company won the case, which represented the first time in 30 years a mining company was allowed to turn a natural lake into a tailings pond.

Conservation groups are monitoring the effects of the waste pond at the Kensington Mine, but the site is very remote, says Lyndsey Ketchel, executive director of the Southeast Alaska Conservation Council.

"It's not something you can go for a Sunday drive to see what's happening," Ketchel says. "It's easier to take for granted when you see that vastness, but when you look at the world in general there are very few wild places. From many people's perspective every development matters. My hope is the EPA understands it has an authority and should use it at appropriate times."

She says the case was extremely divisive in the community.

"Most of the political leaders were in favor of Kensington being developed," Ketchel says. "We and a couple of other groups were in negotiations with the mining company to avoid court. We had just won in appeals court. And it was when those negotiations fell apart the case got picked up by the Supreme Court."

Targeting endangered species

PLF attorneys often take aim at the endangered species act, arguing against protecting lynx in Maine, polar bears in Alaska, sturgeon in California and a range of other threatened or endangered species. The reason is often that they infringe on someone's ability to develop their property. Schiff said the firm seeks a balanced approach to environmental regulation.

"There's absolutely no question that PLF stands for clean air and clean water," Schiff said. "Our job is not to eliminate environmental regulation. I don't know anyone who thinks it's a good idea to dump sewage in rivers and eliminate various species to extinction for no good reason. The difficulty comes with who pays for it. So often individuals are disproportionately and unfairly baring the cost of environmental regulations."

While PLF has had some notable success, much of its work ends with a whimper. In 2007 and 2008, PLF attorneys successfully compelled the Department of Fish and Wildlife to complete status reviews for all endangered species. But the results were less than impressive. The department determined six species, among them one fish and five plants, should be reclassified. Yet to date none have been removed from protected status.

Noah Greenwald, endangered species director for the Center for Biological Diversity, says the reevaluations turned out to be a good thing for species conservation because it actually strengthened the classifications in many cases.

"They are essentially using a law to protect an endangered species in order to weaken or loosen those protections," Greenwald says. "They essentially try and argue that somehow people are threatened by these laws. I think the exact opposite is the truth. Protecting wetlands and protecting endangered species benefit us and future generations. It's hard to think of something that's been more beneficial to people than the Clean Water Act and the Clean Air Act."

Jon Devine, senior attorney in the water program at the Natural Resources Defense Council, said, "The Supreme Court did not give anyone a license to pollute. Pure and simple. Those who pollute our waters will still be held accountable. Today's decision affirmed the legal principle that the EPA under the Clean Water Act may issue compliance orders to promote speedy resolution of pollution problems. It grants recipients of such orders, at a time of their choosing, a day in court to challenge them. The court did not adopt any of the radical ideas advanced by industry and its allies that could have severely hampered public health and environmental protections."

EPA's Enesta Jones said, "EPA will of course fully comply with the Supreme Court's decision, which the agency is still reviewing, as we work to protect clean water for our families and future generations by using the tools provided by Congress to enforce the Clean Water Act."


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