There’s quite a bit of hubbub this morning about a Supreme Court decision, Sackett v. EPA. The decision is being castigated as “gutting the Clean Water Act” or praised as “a victory for liberty”, depending. Here’s the editors’ of the Wall Street Journal’s take (spoiler alert: they come down on the victory side):
The Supreme Court issued another landmark decision pruning back an overgrown administrative state on Thursday in Sackett v. EPA. Don’t believe the cries that the 5-4 decision will despoil America’s precious wetlands. The majority simply stopped a regulatory land grab.
Michael and Chantell Sackett’s ordeal reveals how rule by an unfettered administrative state can cause significant cost and hardship. For 16 years the couple has been battling the bureaucracy to build a home. The Environmental Protection Agency and U.S. Army Corps of Engineers claim their dry property is a wetland subject to federal regulation.
The Clean Water Act (CWA) authorizes EPA to regulate only “navigable waters†in interstate commerce. Yet the EPA said the Sacketts’ property was connected to a wetland some 30 feet away, which was connected to a ditch that connected to a nonnavigable creek that connected to a lake. Follow that?
Americans anywhere in the country could have their backyard declared a wetland, but they wouldn’t know it until the EPA swoops in and threatens enormous penalties for pouring herbicide on weeds. EPA advises landowners to solicit the Army Corps’ opinion before doing anything with their property. But 75% of the time the Corps claims jurisdiction.
There’s one bit of context that so far has been missing from most editorial comment I’ve read including this one. Both the five conservative justices who formed the majority and the four other judges who were in the minority agreed that the EPA had violated the plantiffs’ rights. Nonetheless I agree with one of the minority justice’s expressed opinion that the Supreme Court shouldn’t be in the business of making every environmental decision in the country. The whole kerfuffle reminds me of this:
with Congress being in the position of Henry Blake and the EPA being in Radar’s. Congress left ambiguities in the law to save themselves work but being a Congressional representative shouldn’t be a sinecure. Had the Congress intended the EPA to micromanage every bog, swamp, marsh, damp spot or other wetland in the country they should have written that into the law explicitly. The decision which Sackett v. EPA overruled allowed the EPA to overreach in just the way that the justices agreed violated the plaintiffs’ rights.
What’s the lesson in this situation? First, Congress shouldn’t be signing blank pages, allowing the civil bureaucracy to fill in the details. Sadly, the voters have abrogated their responsibility by electing and re-electing the same people time after time.
It seems to me the other lesson of this, like other recent SCOTUS decisions, is that if you don’t want to violate people’s rights, don’t just assume you can depend on the courts to do the legislators’ work for them or that the civil bureaucracy will be philosopher-kings. If your Congresscritter won’t assume his or her responsibility, vote for someone who will.







