A weak defense of EPA Analysis
With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers. Their task was made easier as Deputy U.S. Solicitor General Malcolm L. Stewart stopped just short of saying that EPA was just as heavy-handed as its adversaries — and several of the Justices — were saying.
Perhaps the most telling example: when several of the Justices expressed alarm that a homeowner targeted by EPA’s efforts might face a penalty of as much as $37,500 each day of alleged violation, Stewart made it clear that the fine actually might be doubled, to $75,000 a day, although he tried to recover by saying that was only “theoretical,” and that he did not think that EPA had ever taken that step.
The argument in Sackett, et al., v. EPA (docket 10-1062) did not appear to portend a slam-dunk loss for EPA during the first half of Monday’s argument, when the lawyer for an Idaho couple faced quite rigorous questioning about whether the couple had exercised options that might have been open to them to avert the dire consequences of EPA enforcement. But the tenor of the session changed abruptly as soon as the line of argument chosen by EPA’s lawyer, Stewart, unfolded.
It all came to something of an explosive verbal climax when Justice Samuel A. Alito, Jr., suggested that the scheme that Stewart had outlined would be considered by the ordinary homeowner as something that “can’t happen in the United States.” Alito ticked off the situation: the homeowner planned to build a house on a lot, the lot was found to have “a little drainage problem,” the homeowner was soon told by EPA that “you have wetlands,” that steps had to be taken to alleviate the environmental threat, that “you have to let us on your premises,” that every day “you face $75,000 in penalties,’ that the homeowner cannot go to court to make a challenge, and that, if there is a court case, it won’t occur “until we choose.”
Stewart did not dispute the recitation even in that accusatory fashion, and could only answer that such an order from EPA would not have been “the first communication” from EPA to the homeowner, since the agency would try earlier to alert property owners of their obligations under the law.
(NOTE TO READERS: This post will be expanded following the afternoon argument.)
Thx. :-/
ping for later