EPA loses second major case

The EPA may have to soon admit that they have overstepped their bounds as court cases are beginning to pile up against them and their regulatory assault on property rights and their legal jurisdiction.

A March 21 SCOTUSblog post detailed the recent Supreme Court decision where all 9 Justices – Yes! Even Ginsburg and Alito agreed on this one – handed the EPA a stinging defeat.

Short version – the SCOTUS decision allows property owners, who are facing an order to comply with an EPA ruling under the Clean Water Act, to sue the EPA. The post notes that it may also apply more broadly to any citizen suit against a government order. The EPA had argued they were immune from such law suits unless and until they decided to press the issue in court.

The decision, written by Justice Antonin Scalia, opens the federal courthouse door to an Idaho couple who have a .63-acre parcel of property close to Priest Lake, and plan to build a house on it. EPA considered their property to be a “wetland,” and told them to stop the development, and restore the property to its former state — or face fines that the government said could reach $75,000 a day. The EPA acted under the Clean Water Act, and it insisted — with the approval of lower courts — that the couple could not sue to challenge the order and had to wait for court review at the option of EPA. That was the result the Court overturned in Sackett, et al., v. EPA, et al. (docket 10-1062).

In an equally important case, the District Court for the District of Columbia handed the EPA another major defeat. The court considered EPA claims that it had the regulatory authority to retroactively revoke Section 404 Clean Water Act permits that had already been approved by the Army Corps of Engineers.

A federal judge slammed an Obama administration gambit to revoke mountaintop mining permits Friday, saying the EPA invented authority where there was none.

“EPA resorts to magical thinking” to justify nullifying permits issued by the U.S. Army Corps of Engineers for Arch Coal Inc.’s Mingo Logan mine in West Virginia, wrote U.S. District Judge Amy Berman Jackson in Washington, D.C.

Berman Jackson said the EPA’s effort to revoke permits already issued by the Army Corps lacked the backing of any statutory provision or regulation. “It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration,” the opinion says.

“Poof! Not only is this nonrevocation revocation logistically complicated,” the ruling said, but it also robs industry of the only way they can possibly measure compliance with the Clean Water Act — a permit.

Both court decisions represent a serious setback for the EPA and its attempts to expand its regulatory authority across the country and at the expense of other state and federal departments.

It will be interesting to watch the EPAs response to these cases.

25. March 2012 by Jason Hayes
Categories: Energy, Environment, EPA, Jobs, Marketplace Information, Mining, Policy, Stream Buffer Zone Rule, USA | Tags: , , , , , , , , , , | 1 comment