What’s the Remedy?

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.

14 comments… add one
  • PD Shaw Link

    The last major wetlands case, Rapanos v. U.S. (2006), was a divided opinion btw/ Scalia and three conservatives, Stevens and three liberals, and Kennedy writing on his own. Given the fractured decision, there was no clear controlling test for what is a wetland; courts have split, applying Kennedy’s analysis, Scalia’s plurality, or both.

    There were several wetlands cases on appeal when Rapanos was decided, and all of them had to start over. One trial judge wrote a stinging order transferring the case to a younger judge, bewailing the weeks of trial wasted on whether this patch of land is waters of the United States, and the lack of clarity about how to re-try the case given the fractured opinions. It had a wonderfully insubordinate tone. The SCOTUS is at fault also for not giving clear guidance, and it refused to resolve the court splits subsequently.

    Congress drafted bills in the Obama period which would have removed the word “navigable” from the Clean Water Act. I’m guessing that those who think the term is too restrictive for wetlands preservation purposes, but can’t find majority support without some other limiting factor to federal government control of all waters anywhere at anytime.

  • Zachriel Link

    Dave Schuler: Congress shouldn’t be signing blank pages, allowing the civil bureaucracy to fill in the details.

    It’s not quite so simple. Consider putting up traffic lights that control traffic with the force of law. Does the legislature decide where to put each and every traffic light? Does the legislature decide how long the green light should last? What if the traffic flow changes, does that require new legislation? That simply wouldn’t work. Rather, the legislature delegates the authority to a department of transportation, which then develops a rational system for making those decisions.

    There’s no escaping the need for a regulatory system.

  • Jan Link

    Maybe this ruling will dovetail into a pending court case that could overturn the Chevon Doctrine – one that could scale back the overreach of government bureaucrats.

  • I believe in regulations, too, Zachriel. However, under our system the Congress is responsible for defining the scope and extent of regulations while the executive branch is responsible for administering them. The Congress can’t delegate its responsibilities to the executive branch. When the Congress fails to define its regulations unambiguously, the courts step in.

    The recourse isn’t more power for the executive branch but for the Congress to do its job.

  • Zachriel Link

    Dave Schuler: However, under our system the Congress is responsible for defining the scope and extent of regulations while the executive branch is responsible for administering them.

    The legislature gives a broad mandate and funding to the executive to install traffic lights to balance safety and efficiency. They leave the details to the executive through a department of transportation. There will always be some ambiguities in broad mandates, and there will always be decisions that strike people as wrong or just crazy.

    But, you really haven’t addressed the question. You say, “When the Congress fails to define its regulations unambiguously, the courts step in,” which suggests that the legislature has to decide about each and every traffic light, something for which they really don’t have the expertise, or the flexibility to update the traffic light system to keep pace with changing conditions or technology.

  • You must be thinking of some other country. Our system doesn’t work that way. You will search in vain for a traffic light installed by the federal government anywhere in the continental United States. Probably not since WPA/CCC days.

    Here’s what does happen. The Congress gives authority (and budget) to the Secretary of Transportation who directs the FHWA to create a standard for traffic lights. It’s here. The executive branch does not have the authority to install or direct state or local governments to install the lights. The Congress can, however, appropriate money for grants to state and local governments for the lights. The state and local governments will then (mostly) let contracts to private companies to install the lights. Some local governments may have their own departments for such things. So, for example, I suspect Chicago’s Department of Streets and Sanitation can actually install traffic lights although it mostly lets contracts for it. State and local governments define where and how many traffic lights will be installed.

    BTW oversight of such grants tends to be far too casual in my opinion. That’s one of the reasons everything the government undertakes is more expensive here in the U. S. than in most other developed countries.

    In the specific instance in question the Congress did define the jurisdiction of the EPA in the Clean Water Act. It did so ambiguously—multiple definitions. The EPA chose to interpret their authority very expansively—so expansively that the members of the court were in agreement that they had overreached.

    IMO criticisms of the court in this action are misplaced—again, the justices were in agreement that the EPA had exceeded its authority. The question was what the remedy should be. Any blame should be laid at the feet of the Congress.

    BTW I expect the new standard for traffic lights to be challenged in the court. I wouldn’t be surprised if suits had already been filed. I may write a post on it.

  • Zachriel Link

    Dave Schuler: You must be thinking of some other country. Our system doesn’t work that way. You will search in vain for a traffic light installed by the federal government anywhere in the continental United States.

    It’s a simple case for consideration. Federal regulation of air and water quality are much more complex, so it can be helpful to start with a simple example. And yes, local governments have legislatures and pass off regulation to departments.

    All broad directives in law have ambiguities. However, the alternative of legislative micromanaging is simply not feasible in practice. Indeed, the U.S. Constitution itself is written very broadly. Interpretation is a judicial function.

    So, we return to the point: “Congress shouldn’t be signing blank pages, allowing the civil bureaucracy to fill in the details.” There is obviously an interplay between broad and narrow legislative construction. But, in this highly simplified example, writing down all the observations of traffic, the science of traffic flow, the various products available, the installed street lights and their timings, updates to all of this as they occur, challenges from citizens, and the meetings, lots and lots of meetings, are going to fill far more (formerly blank) pages than the legislation that directs the executive to figure it out.

  • We have a federal system. State and local governments address most details.

  • Zachriel Link

    Dave Schuler: We have a federal system. State and local governments address most details.

    That just sidesteps the question. We pointed to the huge complexity of something seemingly simple, such as installing traffic lights that regulate traffic with the force of law; how legislatures hand off the details to the executive through a department charged with developing rational policies. Extending this to something like federal concerns over air quality; we cut and paste from above:

    You said, “Congress shouldn’t be signing blank pages, allowing the civil bureaucracy to fill in the details.” There is obviously an interplay between broad and narrow legislative construction. But, with regards to addressing air quality in the modern world, writing down all the observations of air quality across different regions, interviewing experts in air quality, experts in methods of controlling air quality, and experts in economic impacts of interventions, examining the various technological options, the chemical nature of air pollution, its residence time in the atmosphere, how it interacts with local conditions, its medical effects on people, animals, plants, and ecosystems, updates to all of this as they occur with new chemicals constantly being invented and new knowledge about any of the above, input from citizens, political considerations, and the meetings, lots and lots of meetings, are going to fill far more (formerly blank) pages than the legislation that directs the executive to figure it out.

    How could it be otherwise? ETA to further clarify: How could it not mean far more blank pages to be filled in by the civil service than by the legislature?

  • How could it be otherwise? ETA to further clarify: How could it not mean far more blank pages to be filled in by the civil service than by the legislature?

    And yet all nine Supreme Court justices agreed that the ETA had overstepped.

  • Zachriel Link

    Dave Schuler: And yet all nine Supreme Court justices agreed that the ETA had overstepped.

    It’s *expected* that there will be ambiguities concerning the limits of broadly written laws, including the U.S. Constitution itself. But that doesn’t address your assertion that Congress should write laws without blank pages, when it is clear that it is often not possible to do so. ETA: And even when the law seems clear, events or technologies may create ambiguities.

    There’s a long historical pedigree. In Washington’s administration, Congress directed that the executive dole out veterans’ benefits, but gave little direction on how this should be done. Washington doffed it off on Hamilton.

    It’s the blanket statement we find problematic.

  • You haven’t presented your remedy for the case at hand (EPA overreach in its definition of over what “navigable waterways” it has jurisdiction). Saying “tell the EPA not to do that” is insufficient. It is the nature of bureaucracies to extend their influence.

    My answer is for the Congress to write its laws more narrowly but you don’t like that. What’s your remedy? A remedy is clearly necessary when the Supreme Court justices agree that the EPA has overreached. A minarchist would oppose the Clean Water Act as such but I’m no minarchist.

  • Zachriel Link

    Dave Schuler: My answer is for the Congress to write its laws more narrowly

    That is certainly a viable option. However, sometimes Congress wants to be expansive. And, no matter what, there are always going to be ambiguities or unforeseen circumstances that require interpretation, meaning judicial and legislative oversight. It would be nice if Congress were more nimble, but the U.S. system is particularly resistant to change. What often happens is that, when the forces align, Congress passes expansive legislation, then the opposition attacks it on the margins.

    Again, our objection was to the blanket statement. It’s important because people are often led to believe that Congress can legislate without resort to a bureaucratic state.

  • Zachriel Link

    To more directly answer the question, “What’s the Remedy?”

    There is no escaping the complexity of regulation in a modern, highly technological society. There must be a bureaucracy which is able to respond to changing conditions based on general principles set forth in legislation.

    The legislature could more narrowly construct legislation, but the problem is that it would then require new legislation to respond to changing conditions. If the legislature were nimble enough, course corrections would be the best way forward. However, due to the structure of the political system in the United States, change is especially difficult:

    Money in U.S. politics is largely unregulated—and vast. The Senate gives greater relative power to small states, which are easier to influence. Divided rule with three political centers; the House of Representatives, Senate, and presidency; means that change can rarely occur without broad concurrence, largely precluded by the current hyper-partisan environment. The filibuster in the Senate further exaggerates the problem.

    Given all that, it means that the stars will only align for major legislation every generation or so. Consequently, when the stars do so align, legislation is written to be as broad as possible. As noted previously, major corrections are rarely possible, though small changes within the existing regulatory regime can still be made.

    Given the political framework in the United States, the system is more or less working within its parameters. A more nimble system would be preferred; but within the existing framework, only a reduction in hyper-partisanship would make much of a difference.

    Gee whiz. The U.S. Congress was actually debating whether or not they should throw the entire global economy into turmoil, while destroying America’s position as a competent leader.

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