US Supreme Court to Balance Between Protecting the Environment and Property Rights - Page 2
The Idaho couple appeared three times on the right wing TV host 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."
EPA officials decline to talk about the case because it is before the court.
A victory for the Sacketts could "undermine the government's ability to promptly respond to environmental threats," said Nina Mendelson, a University of Michigan law professor and former Justice Department lawyer. But she also said the EPA should consider allowing administrative hearings in cases, such as that of the Sacketts, that do not involve pressing environmental threats.
In defense of the EPA, the Justice Department argued the Sacketts were not entitled to a "pre-enforcement hearing" under the law. The Sacketts "face a dilemma largely of their own making, since they discharged fill into wetlands without first seeking a permit or consulting EPA," the government's lawyers told the high court.
The legal authority for regulating wetlands comes from the Clean Water Act, which forbids the "discharge of any pollutant" into the "navigable waters of the United States." Since the late 1970s, the EPA and the Army Corps of Engineers have claimed broad authority to protect wetlands, even when they are not connected to rivers or lakes.
As the Sacketts learned, putting gravel on a dry lot amounts to "discharging pollutants" into the "waters of the United States" if the lot is deemed to be wetlands.
They might get a friendlier reception from the Supreme Court. Justice Antonin Scalia once complained that the EPA has used its authority over wetlands to claim control over an "immense" area of the nation, "including half of Alaska and an area the size of California in the lower 48 states."
In a 2006 decision, Scalia and three other justices agreed that the EPA's anti-pollution authority extended up rivers to free-flowing streams, but not to nearby marshy fields. Justice Anthony M. Kennedy, in a separate opinion, said the EPA could protect marshy fields or other wetlands, but only if it could show that filling them would harm nearby rivers or lakes.
According to the EPA, Wetlands provide many benefits: flood control, water purification, groundwater recharge, feeding and breeding habitat for fish and wildlife, erosion control and, of course, recreation and beauty.
Some of those benefits can be quantified in dollars. Some can’t.
For example, Wetlands are often inviting places for popular recreational activities including hiking, fishing, bird watching, photography and hunting. More than 82 million Americans took part in these activities in 2001, spending more than $108 billion on these pursuits, this according to the US Fish and Wildlife Service (USFWS).Continued on the next page