Lawsuit Reform

Sackett Victory Holds EPA Accountable…but by How Much?

By Senator Rand Paul (KY)

On March 19, 2012, the Environmental Protection Agency concluded one of its longest-running enforcement matters – a 22-year battle with 80-year-old Massachusetts cranberry farmer and Korean War veteran, Charles Johnson. Mr. Johnson’s crimes were neither violent nor extreme. Rather, Mr. Johnson has spent the past 22 years – and $2.5 million – embroiled in litigation with the EPA for the right to expand his cranberry farm. Now, Mr. Johnson and his family must spend hundreds of thousands of dollars more to create 26 acres of wetlands and to pay a $75,000 fine to the EPA.

If only the Johnsons’ case was unique.

Earlier this year, the Supreme Court heard the story of Mike and Chantell Sackett, who were slapped with $75,000-a-day fines and no legal recourse to challenge them, simply for trying to build a house on a dry tract of property they had purchased in Priest Lake, Idaho. Other houses had stood on that same property for years, but for the Sacketts to continue construction, they would have been required to obtain a building permit costing more than the value of their land.  On March 21, 2012, the Supreme Court ruled that the Sacketts had the right to challenge the EPA’s actions in court.

The Johnsons and the Sacketts are part of a growing group of families and businesses that have been subject to reckless, arbitrary and aggressive enforcement by the EPA and the Army Corps of Engineers, many afforded no legal recourse to fight back. These agencies spend millions of dollars a year to prosecute law-abiding citizens, many of whom have no idea that they’ve even broken the law in the first place. In President Obama’s most recent budget proposal, the Army Corps of Engineers was budgeted $205 million for “wetlands enforcement.” In the Johnson case, it has been speculated that the EPA spent as much as $5.5 million to pursue one farmer. When presented with these facts at a Property Rights Roundtable I hosted in the Senate in October, 2011, many of the participating Senators and Representatives echoed each other in disbelief – “I can’t believe this happens in the United States.”

Ambiguity in the law – particularly when it comes to the definition of “navigable waters” – has allowed these agencies to grow dangerously out of control. Nowhere is this better demonstrated than in the guidance document, jointly released by the EPA and the Army Corps on April 27, 2011. In this guidance document – which allows agencies to give themselves authority by “interpreting” statutes – the EPA and the Corps seek to claim federal jurisdiction over “all waters … subject to the ebb and flow of the tide.” This includes canals, ditches, and something called “ephemeral streams,” which form for a few hours after it rains. This guidance document is nothing short of a power-grab by the EPA and the Corps – a blatant attempt to remove “navigability” as a component of federally regulated water bodies, and thereby assert government control over all waters of the United States.

It is not an overstatement to say that the EPA and the Corps are waging a war against private property owners in the United States. While it is true that environmental protection is important, it must be balanced with the fundamental American right to private property – guaranteed to each citizen in the Constitution. There is only one way to restore this balance: Congress needs to redefine the definition of navigable waters – and in doing so, give the EPA and the Corps strict statutory limits of how far they can regulate.

In February, I introduced S.2122, the Defense of Environment and Property Act, to restore this badly needed clarity and common sense to federal water policy. My bill takes the necessary step of re-defining navigable waters to be “permanent, standing, or continuously flowing bodies of water that form geographic features commonly known as streams, oceans, rivers and lakes that are connected to waters that are navigable-in-fact.” This language comes from a plurality opinion written by Supreme Court Justice Antonin Scalia in the 2006 landmark case, Rapanos v. U.S. Next, the bill retracts the troubling rules and guidance documents that are the crux of EPA and the Corps overreach – and then prohibits the EPA and the Corps from further regulating or “interpreting” the definition of navigable water without explicit Congressional consent. S.2122 also contains a dedicated section to protect the rights of states to have primary authority over the land and water within their borders. Finally, the bill takes the important steps of barring federal agents from entering private property without the express consent of the landowners, and requires the government to pay double the value of the land to any landowners whose property value is diminished by a wetlands designation.

S.2122 is a necessary first step towards protecting families like the Johnsons and the Sacketts, who have now given up years of their lives defending themselves against their own government. Gary Baise, a former EPA official, commented on the Johnson case recently, noting that the EPA “had it out for Charlie from the beginning.Charlie is a gruff old guy, and they don’t accept anyone who stands up to them, so they will punish you. They punished Charlie and his family.”

It is time to put a stop to this abusive behavior by agency bureaucrats.S.2122 is a necessary first step toward righting the balance between regulatory agencies and the Constitutional rights of American citizens.

To learn more about the Defense of Environment and Property Act, please visit my website.

Senator Rand Paul is a Republican from Kentucky. The views in blog posts are those of their authors and do not necessarily reflect the views of the American Legislative Exchange Council.

In Depth: Lawsuit Reform

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