Political Pistachio

Blog Home of the Writer and AM and FM Radio Host, Douglas V. Gibbs.
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Thursday, April 12, 2012

Supreme Court Rules Against EPA in Idaho Wetlands Case


By Douglas V. Gibbs

Article I, Section 8, Clause 17 of the United States Constitution indicates that State land belongs to the States, and if the federal government is to have any control over State land by taking possession, or otherwise, the land must be purchased by the federal government, and the State legislature must give its permission. No place in the Constitution is the federal government given any authority over State land in any other manner, nor does the Constitution grant the authority for the federal government to enforce environmental regulations over State lands. As per the Tenth Amendment, since no authority over environmental issues is granted to the federal government, nor is it prohibited to the States, any environmental regulations are a State authority. If the federal government desires such an authority, the power can only be granted by amendment, which also requires a three-quarter ratification by the States.

Understanding the Constitutional end of environmentalism reveals that the federal government is not supposed to have the kind of powers it has seized regarding this issue. Unfortunately, the Washington establishment, nor the courts, seems to understand that. The problem is they have determined that the Constitutionality of issues is based on case law, or the opinions of judges, rather than the original intent of those that debated over the text of the various articles.

Every once in a while, however, segments of the government get it sort of right, though usually for the wrong reasons. The Supreme Court recently sided with an Idaho couple fighting against the Environmental Protection Agency and their order against the couple to stop construction of their home because the EPA decided to designate it as a wetland.

The land is near a scenic lake, and when they decided to build in 2007, the EPA ordered a halt to the project, saying the Clean Water Act requires that wetlands not be disturbed without a permit. If they did not stop construction, the couple would face a massive fine by the EPA.

Given no reasonable way to challenge the order they appealed to the Supreme Court. In an opinion written by Justice Scalia, the court ruled the EPA cannot impose fines that could be as much as $75,000 a day without giving property owners the ability to challenge its actions. 

This ruling, however, only gives the Idaho couple the right to challenge the EPA head-on in court. However, in a concurring opinion, Justice Samuel Alito noted that the law allowing EPA to demand compliance is overly broad.

"The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy," Alito wrote.

"The court's decision provides a modest measure of relief," he added. "But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA's tune. Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act."

Agencies like the EPA and the IRS, with their broad unconstitutional powers, was exactly the kind of thing the Founding Fathers were trying to guard us against when they wrote the Constitution in the manner it was written. Unfortunately, the federal government has exceeded the authorities granted to it, and the only way to stop it seems to be through the courts, which are for the most part in collusion with the intrusive agencies.

The Idaho case, however, has brought the grasp the EPA has on private property to the attention of a number of lawmakers, who are now taking action to work to limit the EPA's authority.

If the State of Idaho had the gumption, they would simply tell the EPA to get out of their State, and return jurisdiction back to the States as is constitutionally allowed, but I don't think at this point the State Legislature in Idaho has a full understanding of their authorities, nor do they have the intestinal fortitude to stand up to a federal agency.

This court decision is a step in the right direction, but we are far from what was originally intended by the Founding Fathers.

-- Political Pistachio Conservative News and Commentary

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