Tag Archives: supreme court

EPA and Regulatory Taking of Private Property

The Fifth Amendment to the U.S. Constitution forbids the government from taking privately owned property without the due process of law, and without just compensation. However, what constitutes a government “taking” and can “due process” be preemptively satisfied by agency regulation? It seems in the case of “wetlands”, the EPA has overreached its authority.

Let us first attempt to identify “wetlands”. According to a comprehensive classification system developed in 1979, a site can be categorized as coastal or inland, yet the classification of “wetland” is not site-specific. Instead, “wetlands” is explained as a hierarchical, progressive structure of connected waters of the state. In what is termed the Cowardin Classification System, “wetlands” is an all-encompassing geographical feature. It consists of linked layers of species and subspecies, soil types and subtypes, an assortment of vegetation, along with various water sources, movements, and duration of presence. Simply stated, a piece of ground that can receive water (including rain) is part of the system that is “wetlands”. The Cowardin System, prepared for the U.S. Fish and Wildlife Service, is an impressive, comprehensive report. Indeed, it has been the de facto standard for EPA employees in assigning a wetlands designation to private property. As a result, EPA’s authority and jurisdiction relating to “Navigable Waters” has multiplied.

As a result, many landowners have lost private property usage and development rights. Effectively, the property owner has suffered a “taking” by the federal government. Such was the case of Mike and Chantell Sackett, an Idaho couple who challenged the EPA’s enforcement actions under §404 (wetlands) of the Clean Water Act (CWA). In a 2013 decision, the Supreme Court ruled unanimously against the EPA. In essence, the agency could not deny the Sacketts a hearing to challenge the agency’s use of CWA authority and jurisdiction over their land. The Sacketts successfully argued the EPA violated their constitutional right to due process. The simple question before the Supreme Court was whether landowners have a right to challenge a legal order of the EPA? The answer was a resounding 9 to 0 “Yes”. The EPA worked to preclude the right to judicial review exercising self-assumed authority in designating wetlands. In the majority opinion, Justice Antonin Scalia wrote that the court rejected EPA’s attempt to use the CWA as a blanket fulfillment of due process. Justice Samuel Alito concurred stating Congress should clarify ambiguities in the CWA.

In the case of Rapanos v. the United States, though the court came to no decision (the parties eventually settled), four Justices spoke against the EPA. Justice Scalia wrote the EPA’s use of the term “waters of the United States” is an overreach in identification of wetlands. The concurring Justices agreed. The court found that occasional, intermittent, or ephemeral water flows may have a hydrological connection. However, “are not sufficient to qualify a wetland as covered by the CWA; it must have a continuous surface connection”.

Likewise, in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, the Court ruled against EPA. Chief Justice William H. Rehnquist wrote the EPA overreached in its wetland designation of “isolated, abandoned sand and gravel pits with seasonal ponds, which provide migratory bird habitats”. Both the Rapanos and the SWANCC court opinions counter the Cowardin concept of all waters being connected in one wetlands system. Such decisions constitute a slap-of-the-hand by the Supreme Court to EPA and offer an opportunity to discuss the ever increasing dominance of the agency over the lives of everyday citizens.

America’s founders designed our government to serve the people. Increasingly citizens are left with little recourse but to ask the courts to assure their constitutional rights as threatened by dominant government agencies. The EPA, arguably being one of the most insidious, dictatorial federal agencies.

Fortunately, recent Supreme Court decisions and Justice Alito’s urging that Congress address ambiguities have triggered action by some. Several Senators have introduced S.980 a bill that attempts to clarify the CWA by explaining waters of the state are “Navigable-in-fact” and is “permanent, standing, or continuously flowing bodies…from streams, oceans, rivers, and lakes and are connected to waters that are navigable-in-fact“. Passing S. 980 would be a great start to corralling the EPA’s assault on private property rights. This, along with the Supreme Court ruling affirming the 5th amendment right to due process is an indication we are making headway.

EPA Regulations Overruled by Supreme Court

In a 5-4 ruling, the Supreme Court ruled that the Environmental Protection Agency (EPA) had not adequately considered the costs of its regulations before enacting them. Limits finalized in 2012 as part of the Clean Air Act on toxic air pollutants proved to be a prohibitive cost on coal utility plants. They were also a main feature in the Obama administration’s environmental policies.

The case, Michigan v. EPA, centered on the first ever limits on mercury, arsenic, and acid gases emitted by coal-fired power plants. While the EPA had estimated the new rules would cost $9.6 billion, placing it among the costliest regulations ever instated.

Prior to the ruling, the head of the EPA Gina McCarthy had said she felt confident the Supreme Court would rule in their favor. However, were that not to be the case, she said:

But even if we don’t [win], it was three years ago, most of them are already in compliance, investments have been made, and we’ll catch up. And we’re still going to get at the toxic pollution from their facilities.

With most coal plants already in compliance, the ruling does little to slow emission curbs in the coal industry. Regulations on interstate air pollution were already upheld last year by the Supreme Court, ensuring that most utilities will need to control future pollution regardless of the new ruling. Furthermore, in the majority opinion, written by Justice Scalia, the Court ruled that the EPA could reconsider the regulations with better cost assessments before reinstating such rules.

 

EPA, I Shall Call You Sybil

This week, President Obama is formally proposing a new EPA regulation to reduce greenhouse gas emissions by 30 percent from existing U.S. power plants by 2030. After many attempts at passing carbon cap and trade legislation through the Congress over the last decade have failed, the President is now taking unilateral action to directly regulate greenhouse gas emissions. How did we get here?

The EPA receives its power to regulate those economic activities that impose environmental impacts from air pollution through the Clean Air Act of 1990. In 2007, the U.S. Supreme Court ruled that the Environmental Protection Agency (EPA) had the ability to regulate greenhouse gas emissions, even though such emissions had not been considered air pollutants. However, this regulatory power was conditional on the EPA submitting an “endangerment finding,” in which a careful review of the existing science clearly indicates that greenhouse emissions directly endanger the health of Americans.

Marlo Lewis at the Competitive Enterprise Institute points out that section 202 of the Clean Air Act specifically requires the EPA to perform its own scientific assessment and to exercise its own independent judgment when finding evidence of endangering human health. This means the EPA cannot rely on the scientific assessment and judgment of outside organizations to find conclusive evidence of health endangerment to justify its regulatory powers.

The EPA entered its endangerment finding into the April, 2009 section of the Federal Register, which is the official log of all regulations proposed by federal agencies. However, this endangerment finding, and the EPA’s defense of this finding to its many critics, stretches the boundaries of logic.

Logical Inconsistency #1: Senator Jim Inhofe (R-Oklahoma) had a careful look at page 18,901 of the 2009 Federal Register. (BTW, does it bother anyone else that by April, the annual log book of proposed federal regulations had already reached over 18,000 pages?) Senator Inhofe is bothered by the fact that the EPA states:

To be clear, ambient concentrations of carbon dioxide and the other greenhouse gases, whether at current levels or at projected ambient levels under scenarios of high emissions growth over time, do not cause direct adverse health effects such as respiratory or toxic effects.

 The Senator sees this as a direct contradiction to the finding that greenhouse gas emissions endanger human health.

Logical Inconsistency #2:  Marlo Lewis points out that the U.S. Inspector General has issued a report that claims the EPA failed to perform its own scientific analysis to reach the conclusion that endangerment to human health existed. Page 23 of that report states that the EPA responded to this criticism by claiming that the documented analysis was “not a scientific assessment,” but merely a summary of findings by organizations, like the the recently discredited Intergovernmental Panel on Climate Change, or IPCC. This statement makes it appears the EPA simply relied upon other organizations for both the scientific assessment and the conclusion that greenhouse gas emissions directly threaten human health. Even the Inspector General feels that this endangerment finding fails to meet the requirements specified in the Clean Air Act.

Have greenhouse gas emissions been proven to be an endangerment to human health? I guess it depends on which EPA you are talking to… Sybil? Is that you?

Drones Strike the Farms

Technology advances in the United States as quickly as it can be researched and one of the oldest professions is still seeing accelerating growth. The most recent achievement is the use of drones in agricultural surveillance. Also known as Unmanned Aerial Vehicles (UAVs), drones gained fame during the Iraq-Afghanistan conflict as a safer way to attack targets. Their original intention has been lost recently as companies such as Amazon and UPS are researching ways to use drones to deliver packages to your front doors.

While it may sound like drones will be taking jobs away from Americans it is in fact the opposite. One report details that once the Federal Aviation Administration (FAA) establishes guidelines for commercial use, the drone industry could expect to create more than 100,000 jobs and nearly half a billion in tax revenue to be generated collectively by 2025, and most of that is just agriculture.

The agriculture industry represents over 16 million jobs in the United States and nearly 1.1% of all Gross Domestic Product (GDP). With numbers like that it is no wonder that drone surveillance is such an emerging technology for farmers. There are even colleges in the Midwest that are incorporating learning drone technology for farming. However, while there are significant benefits with utilizing drones, there are consequences to the technology.

Right to privacy is a huge factor and how do nearby farmers know that the drones are not watching their land? This could create huge advantages for local farms that are looking to receive an advantage from using highly advanced surveillance techniques. This year alone nearly 36 states, including Iowa, are attempting to implement legislation that would put numerous restrictions on drone use.

The possibility of drones depends wildly on the users definitions of privacy. Citizens in some states may care more than others, thus it may allow one state to have a high level of drone use while another may choose to not allow them. Whatever the decision is, it is my prediction that the use of drones for commercial purposes may make its way up for the Supreme Court to decide. There is too much controversy around the technology to take off immediately; there are several hurdles that the technology will have to jump before it becomes mainstay in society.