thehill.com/blogs/e2-wire/e2-wire/203383-obama-pledges-to-stand-by-epa
A case was argued in the U.S. Supreme Court this week that left even liberal members of the Court agog. The facts are that a couple bought a subdivision lot in Priest Lake, Idaho that already had sewer and water connections for $23,000. There was a small creek running across the property, so before buying it they checked with the Army Corps of Engineers to see if there was a wetland issue. They were assured there was not, so happily they closed the sale and began to dig out and pour the foundation footings. Then arrived the Man from the EPA!
"You can't do that," he thundered, "it's a wetland!" They tried to tell him that the agency had made a mistake and the Corps (which delineates wetlands in the first place) said there was no wetland. Of course that did not suffice and the EPA went on to order them to tear out the footing and to restore the property to its original condition except for some non-native plants that the agency thought would look nice - all at a cost of $250,000. And, if these miserable serfs waited for 10 years, the EPA might discuss a building permit. Hmmph! So there!
Naturally, the owners thought the agency was being a little, well Nazi-like, so they sought judicial review of the order. The EPA's response was that under the Clean Water Act it had exclusive jurisdiction and thus there was no judicial review. This is an interesting argument to make to a judge, but since it was an argument that would fool only a lawyer, the Federal District Court in Boise and the Ninth Circuit Court of Appeals of course bought it. Fortunately, the Supremes appear to have seen through the brilliance of the government's argument.
Chief Justice Roberts set the tone when he asked the EPA's lawyer whether he was familiar with the Fifth Amendment to the Constitution which prohibits government from depriving citizens of, among other things, property without due process of law. Perhaps this might trump even the almighty EPA? Then there was the concept of judicial review itself, which has been around since 1803. Clearly the justices were not amused by an agency setting itself up as a kingdom unto itself. Questioning from the other justices was along similar lines, even from liberal Justices Kagan and Breyer. Justice Alioto said that most Americans would not have ever thought that a case like this could happen here. Amen, but all of us would be wrong.
Court observers expect the Supreme Court to reverse the lower courts and send the EPA packing. It cannot come too soon and I hope massive attorney fees are awarded against the agency for its arrogant and un-American actions in the Sackett case.
This case also illustrates what is at stake in the Presidential election. The EPA here is Big Government and what it did is what Big Government always does - it was not an aberration. Big Government manages to be both arrogant and incompetent at the same time. Obama and the Democrats want to take the U.S. down this path - such cases are a small price to pay for the level of centralized control that they want. Heaven help us if they get away with it.
washingtonexaminer.com/opinion/editorials/2012/01/constitutional-right-due-process-stake-epa-case/2078316
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