The Biden administration’s effort to “clarify” federal
jurisdiction over certain bodies of water under the Clean Water Act
(CWA) is headed to court.
At stake is an issue that has been around since enactment of the CWA
in 1972: Over which “waters of the United States” (WOTUS) does the CWA’s
regulation of discharges pertain? The statute makes specific reference
to “navigable waters of the United States” – generally understood to
mean rivers, bays, streams, etc. – but says little, if anything, about
other bodies of water. Over time, regulators at the Environmental
Protection Agency (EPA) and the U.S. Army Corps of Engineers, which
share jurisdiction over the CWA, have — without congressional
authorization — gradually expanded their writ to include water bodies
that clearly are not navigable.
What was originally supposed to be a water-quality statute has been
twisted by bureaucratic fiat into a federal land-use mechanism, igniting
a slew of lawsuits over the decades. Two Supreme rules from the early
2000s failed to provide the needed jurisdictional clarity. The Obama
administration, under the guise of “clarifying” the matter, issued a
WOTUS rule that was little more than federal zoning of millions of acres
of private land. Federal courts struck down two sections of the Obama
scheme, and the Trump administration replaced it with a rule that
limited the scope of Washington’s jurisdiction, and provided some
protection for landowners. This was anathema to Biden administration
officials, who scrapped the Trump plan, and have now issued a federal
zoning scheme of their own.
Now that the Biden rule has been finalized, parties whose livelihoods
are at risk from this latest regulatory overreach are taking EPA and
the Corps to court.
Giving the Federal Government “Sweeping Authority over Private Lands”
“Farmers and ranchers share the goal of protecting the resources
we’re entrusted with. Clean water is important to all of us,” said Zippy
Duvall, president of the American Farm Bureau, in a Jan. 19 statement.
“Unfortunately, the new WOTUS rule gives the federal government sweeping
authority over private lands. This isn’t what clean water regulations
were intended to do. Farmers and ranchers should not have to hire a team
of lawyers and consultants to determine how we can farm our land.”
“The new rule is vague and creates uncertainty for American farmers,
even if they are miles from the nearest navigable water,” Duvall
continued. “We believe a judge will recognize these regulations exceed
the scope of the Clean Water Act, and direct EPA to develop rules that
enable farmers to protect natural resources while ensuring they will
continue stocking American pantries.”
Joining the American Farm Bureau in the lawsuit are 17 other
organizations representing agriculture, home builders, construction
infrastructure companies, as well as state and county farm bureaus.
Filed Jan. 18 in the U.S. District Court for the Southern District of
Texas, Galveston Division, the lawsuit charges the Biden EPA with
overstepping its authority under the CWA.
“Staggering Range of Dry Land and Water Features”
“Instead of providing much-needed clarity to the regulated community,
however, all the Rule makes clear that the Agencies [EPA and the Corps]
are determined to exert CWA jurisdiction over a staggering range of dry
land and water features – whether large or small; permanent,
intermittent, or ephemeral; flowing or stagnant; natural or manmade;
interstate or intrastate; and no matter how remote or lacking a physical
connection to actual navigable waters,” the suit states. “Under the
Rule, Plaintiffs’ members will constantly be at risk that any
sometimes-wet feature on their property will be deemed WOTUS by the
Agencies using vague and unpredictable standards – making normal
business activities in that area subject to civil and criminal
penalties.”
The suit argues that the Biden WOTUS rule should be held unlawful
under the Administrative Procedures Act, “because the Rule adopts an
unworkable definition of WOTUS that conflicts with the CWA, the
Constitution, and Supreme Court precedent.”
Along with the American Farm Bureau, the 17 other plaintiffs include:
Bonner R. Cohen,
Ph. D., is a senior policy analyst with CFACT, where he focuses on
natural resources, energy, property rights, and geopolitical
developments. Articles by Dr. Cohen have appeared in The Wall Street
Journal, Forbes, Investor’s Busines Daily, The New York Post, The
Washington Examiner, The Washington Times, The Hill, The Epoch Times,
The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami
Herald, and dozens of other newspapers around the country. He has been
interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC,
BBC Worldwide Television, N24 (German-language news network), and scores
of radio stations in the U.S. and Canada. He has testified before the
U.S. Senate Energy and Natural Resources Committee, the U.S. Senate
Environment and Public Works Committee, the U.S. House Judiciary
Committee, and the U.S. House Natural Resources Committee. Dr. Cohen
has addressed conferences in the United States, United Kingdom, Germany,
and Bangladesh.
He has a B.A. from the University of Georgia and a Ph. D. – summa cum
laude – from the University of Munich.
(Editor's Note:My Friend Jay Lehr has passed. This is a blast from the past, and a demonstration of Jay work with his long time partner in this battle against the junk science over global warming and energy production, Tom Harris. His like won't pass this way again soon.RK)
There is a disconnect
between the elites in government, business, labor, and academia and
common citizens in America. Many of the elite “have never worked an
honest day in their lives,” as old-school folks might say. They do not
understand what it takes to earn a living, run a business, or feed a
family by the sweat of their brow. And some of those with beginnings in
the “real world” — say, union officials — find themselves corrupted by
money and power when they achieve positions of leadership.
President
Joe Biden went to law school and became a politician. Gov. Tom Wolf of
Pennsylvania inherited a successful business and lived off its wealth.
We have young people major in political science, then become legislative
staffers until there is an opportunity to run for office. They have no
idea what goes on in the world of profit and loss, hiring and firing.
They have no appreciation of what it takes to produce food and energy or
make steel, cars, or widgets of any kind.
In
the climate arena, we have people falling for climate scares and
willing to risk impoverishing an entire civilization to finance
windmills and solar panels that cannot possibly sustain a modern
society. And it’s not just government. It’s big business, big labor, and
practically all of academia. This state of affairs has had a terrible
negative impact, particularly on the state of Pennsylvania.
Visible
from western Pennsylvania’s Allegheny Mountain ridges are coal-fired
power plants — and their plumes of water vapor — that have been integral
to much of the regional economy for 50 years. Three plants east of
Pittsburgh directly employ
550 people and support an estimated 8,100 jobs, according to Power PA
Jobs Alliance, a coalition of labor and industry groups. Now, two of
these power plants — the generating stations of Conemaugh on the
Indiana-Westmoreland county border and Keystone in eastern Armstrong
County—are slated to close by 2028.
The owners blame costs from the U.S. Environmental Protection Agency’s (EPA) wastewater rule. The regulation is expected to lead to at least 26 plants in 14 states to stop using coal, according to news reports. Another factor in Pennsylvania is Gov. Tom Wolf’s unilateral decision to join the Regional Greenhouse Gas Initiative (RGGI).
“These
plants have sunk billions of dollars into environmental projects,” said
Ken Umholtz, a Conemaugh employee commenting on the EPA’s concern about
water quality. “We no sooner finish one thing, and it’s something
else.”
Though the Conemaugh
plant recycles most of its water, Umholtz said, “Environmentalists. . .
plan to regulate us out of business, but they are not going to have
electricity because there is nothing to replace us.
After
eight regional refineries closed and others downsized, workers at a
Philadelphia refinery hope the government won’t kill their jobs too. The
modernization of the Trainer Refinery south of Philadelphia is
initially obscured by aged brick buildings and hulking equipment. With
closer examination, however, emerge brightly painted pipes, scores of
gleaming white tanks, and towering construction cranes that hint of
ongoing upgrades.
With a
growing post-pandemic economy and strong energy prices, prospects are
bright save for threats of a controversial carbon tax scheme by the
governor and federal regulations. Federal rules have contributed to the
closure of seven independent refineries on the East Coast since 2009,
leaving only Trainer and three others remaining. And one of those —
owned by PBF Energy in New Jersey — closed half its refining units and
laid off 250 employees last summer.
PA-based Monroe
Energy, which owns the Trainer Refinery, annually spends tens of
millions of dollars on improvements to keep abreast of government
regulations and customer needs. A few years ago, it invested nearly $200
million installing equipment to make low-sulfur gasoline. Currently,
the company is building high-efficiency electrical substations, as well
as water-cooling units that enable millions of gallons of water to be
reused, dramatically reducing dependence on Delaware River water.
Monroe
employs approximately 500 people and hires at any one time up to 1,400
members of the Philadelphia Building Trades for maintenance projects
that can last for months. Because of their work, Trainer produces daily
more than 8 million gallons of fuel, mainly for transportation and
heating.
Despite
this, the overall decline of regional production capacity has left the
East Coast vulnerable to supply interruptions and more dependent than
ever on imported fuels.
Wolf’s
proposal to institute a tax on electricity generators that use fossil
fuels through the RGGI is intended to encourage the replacement of fuels
like coal and natural gas with more expensive wind and solar energy.
In
comments to regulators, Monroe noted its extensive use of electricity
and cited data showing that the cost of power was 38 percent less in
non-RGGI states. Despite spending hundreds of millions of dollars on
environmentally beneficial investments, with plans for more, Monroe
fears “that enacting a program like RGGI will increase costs to such an
extent that we may be unable to move forward with some of these
projects.”
Both
RGGI and the Renewable Fuel Standard (RFS) requiring ethanol in all
gasoline have drawn widespread criticism from labor and industry groups
and from politicians of both major parties. While Pennsylvania and New Jersey governors are supportive of RGGI, both have written the EPA with concerns about the issue of RFS credits.
Yet
more than 50 organizations representing millions of people have written
in support of RFS reform. Even the National Wildlife Federation opposes
the RFS because increased ethanol use has led to croplands infringing
on natural habitats. Trade organizations of the dairy industry and
bakeries have objected to RFS’s pressures on corn prices and supplies.
The
negative consequences of both RFS and RGGI — including job losses and
diminished fuel security — seem obvious to nearly everybody. Yet the
employees at Trainer are still waiting for relief from Washington while
also hoping to avoid the economic wreckage proposed by the governor and
the absurdity of bureaucrats trying to improve the climate.
“We
hope people will side with us and allow us to keep doing our jobs,”
says Trainer employee Ron Pierce. A retired Marine sergeant, Pierce
started as a unit operator and now leads the facility’s
emergency-response teams and acts as refinery fire chief. Yet all that
is in jeopardy now due to woke environmentalists and their cowardly and
uninformed political supporters. It must be stopped!
Dr.
Jay Lehr is a Senior Policy Analyst with the International Climate
Science Coalition and former Science Director of The Heartland
Institute. He is an internationally renowned scientist, author, and
speaker who has testified before Congress on dozens of occasions on
environmental issues and consulted with nearly every agency of the
national government and many foreign countries. After graduating from
Princeton University at the age of 20 with a degree in Geological
Engineering, he received the nation’s first Ph.D. in Groundwater
Hydrology from the University of Arizona. He later became executive
director of the National Association of Groundwater Scientists and
Engineers.
Tom Harris is Executive Director of the Ottawa,
Canada-based International Climate Science Coalition, and a policy
advisor to The Heartland Institute. He has 40 years experience as a
mechanical engineer/project manager, science and technology
communications professional, technical trainer, and S&T advisor to a
former Opposition Senior Environment Critic in Canada’s Parliament.
I've been watching this for some time and I lost sight of it in the last couple of years as I thought it was resovled a few years ago. Wrong! I'm now shocked the Trump administration didn't fix this, but the fact is Trump came into office without a trusted group of followers, including the Republicans, who actually worked to undermine him in support of the Deep State. He even left former Obama people in their jobs, and I think some for his whole administration. I have to believe that will change after 2024. At any rate, here's the story going back ten years, much of what's appearing here is from Wikipedia at the end lending more background.
On March 9, 2012 I posted this:
In past weeks I posted a link to a
video that was uplifting. This week is going to be different. This will
outrage you! Sackett v. EPA Still Awaiting SCOTUS Decision
In January 2012, the Supreme Court heard the arguments for Sackett v. EPA,
the case of an Idaho couple being persecuted for trying to build a home
on a small plot of property the Environmental Protection Agency deemed
"protected wetlands." The case is still under review and the Sacketts
are waiting for a decision, but Reason followed up with a great video
breaking down the entire enviro-busybody boondoggle.
It's an ugly story of Deep State corruption, petty bureaucrats and why we need to abolish the EPA.
You Cannot Have This EPA and a Constitution By Terence P. Jeffrey
| January 16, 2012 - ESTMark Levin
says America cannot at the same time have a Constitution and an
Environmental Protection Agency (EPA) that is doing what the EPA is
doing today. Levin made the observation in an interview with CNSNews.com about his new book, “Ameritopia: The Unmaking of America.” Modern
American liberals, who are Utopias, Levin said, aim to erode the
separation of powers built into the U.S. Constitution so that a
“relative handful of masterminds” can tell everybody else what to do. “This
erosion has been going on for about a hundred years,.......It’s
at a much faster pace right now and there’s a reason for this--because
you can’t have constitutionalism and utopianism"............The Supreme Court last week
heard arguments in the case of Sackett v. Environmental Protection
Agency. The case was brought by an Idaho couple, Mike and Chantell
Sackett, who were told by the EPA that they could not build a home on
their own lot because the EPA said it might be a wetland—and that they
could face a fine of $37,000 per day for defying the EPA’s order...........SOURCE
Sackett versus the EPA: There is more! -
Today the United States Supreme Court issued an opinion in Sackett v.
Environmental Protection Agency, a case brought by an Idaho couple
represented by our friends at the Pacific Legal Foundation. It is a
great victory for landowners facing the wrath of the EPA.Wyoming Liberty Group's Steve Klein's article was a refreshing change
from the dozen or so articles I read or skimmed in the liberty-media and
elsewhere in the days after the SCOTUS decision was announced. I even
posted a comment – in general praising Steve's work – though it has not
(as of Saturday the 24th at 1800 hours MT) been screened and posted.
Perhaps they thought that I was being too critical of Steve's article. To read more..... This ruling handles the surface issue but this goes far deeper than the surface issue. RK
Sackett versus the EPA: There is more- Today the United States Supreme Court issued an opinion in Sackett v.
Environmental Protection Agency, a case brought by an Idaho couple
represented by our friends at the Pacific Legal Foundation. It is a
great victory for landowners facing the wrath of the EPA. Wyoming Liberty Group's Steve Klein's article was a refreshing change
from the dozen or so articles I read or skimmed in the liberty-media and
elsewhere in the days after the SCOTUS decision was announced. I even
posted a comment – in general praising Steve's work – though it has not
(as of Saturday the 24th at 1800 hours MT) been screened and posted.
Perhaps they thought that I was being too critical of Steve's article.
To read more.....
KNIGHT: Taming the EPA monster - By Robert Knight - - Friday, March 23, 2012 - Supreme Court ruling strikes a blow in ongoing battle. Slowly, inexorably, the monster is being driven back to its lair. Its
days of terrorizing villagers may soon be over. I wish I were talking
about the federal government, but it’s the Environmental Protection
Agency (EPA), better known as the Environmental Protection-or-else
Agency. At one time, it was a harmless little back-alley operation that
stumbled upon a secret growth formula, downed the whole vat and began
wreaking havoc. You won’t find this account on the EPA’s official
website, but you will find ample evidence of the monster’s ambitions to
control the world, such as its quest for “environmental justice.” On
Wednesday, the U.S. Supreme Court slapped the monster right across the
chops in Sackett v. EPA. An Idaho couple, Chantell and Mike Sackett,
were building a home but fell victim to an EPA compliance order in 2005.
Their building permit was revoked.......To Read More...
Years after Supreme Court win, Sacketts lose fight with EPA -
Ariel Wittenberg, E&E News reporter - After winning the right to challenge EPA enforcement orders in a major
2011 Supreme Court ruling, Michael and Chantell Sackett have lost their
case. A U.S. District Court for the District of Idaho judge ruled that the
wetlands the couple are accused of illegally filling were indeed
protected by the Clean Water Act. "The Court finds the EPA's determination was not arbitrary or capricious
and is supported by the record," Reagan appointee Judge Edward Lodge
wrote in a ruling
on summary judgment last week. Tony Francois, an attorney at the
Pacific Legal Foundation representing the Sacketts, indicated his
clients would appeal the case. "The Sacketts are disappointed in the ruling, but relieved that this
phase of the case, involving a more than three-year wait for a decision
from the court, is finally complete," Francois said in a statement. "We
think there are several legal errors in the district court's decision,
and will be filing an appeal." At issue was an administrative compliance order issued in 2007
against the Priest Lake, Idaho, couple for filling in wetlands on their
land without a permit. ........To Read More.....
Certiorari was granted in the case on January 24, 2022. Owners of land taken over by feds getting day in court Supremes to review EPA decision it controls residential parcel in Idaho - "With
this case, the Supreme Court confronts important issues for property
rights and due process. When the government seizes control of your land,
and you disagree with the justification, shouldn't you be allowed your
day in court? Just as important, should EPA be a law unto itself,
without meaningful accountability to the courts and the
Constitution?"……..And it's not just the Sacketts' land that could be subject to such
orders. The foundation arguments suggest that private property across
the nation could be at risk. The legal team noted that between 1980 and
2001, the EPA issued up to 3,000 compliance orders every year across the
nation. "The reality of the Sacketts' situation is that they have been
unambiguously commanded by their government not to complete their
home-building project, to take expensive measures to undo the
improvements that they have made to their land, and to maintain their
land essentially as a public park until the property is 'restored' to
the satisfaction of the EPA. They have been threatened with frightening
penalties if they do not immediately obey; but they have been refused
the prompt hearing they should have received as a matter of right in any
court," Pacific Legal argued. ..............
Petition
GRANTED limited to the following question: Whether the Ninth Circuit
set forth the proper test for determining whether wetlands are "waters
of the United States" under the Clean Water Act, 33 U. S. C. §1362(7).
Joint
motion to extend the time to file the briefs on the merits granted.
The time to file the joint appendix and petitioners' brief on the merits
is extended to and including April 11, 2022. The time to file
respondents' brief on the merits is extended to and including June 10,
2022.
Feb 10 2022
Blanket Consent filed by Respondents, U.S. Environmental Protection Agency, et al.
Sackett v. Environmental Protection Agency may refer to either of two United States Supreme Court cases:
Chantell Sackett, et vir v. Environmental Protection Agency, et al.Docket no.10-1062Citations566 U.S. 120 (more) 132 S. Ct. 1367; 182 L. Ed. 2d 367; 2012 U.S. LEXIS 2320 ArgumentOral argumentCase historyPriorCase dismissed, 2008 WL 3286801 (D. Idaho Aug. 7, 2008); affirmed, 622 F.3d1139 (9th Cir. 2010); cert. granted, 564U.S. 1052 (2011).SubsequentRemanded to District court, 677 F.3d1000 (9th. Cir. 2012)HoldingOrders under the Clean Water Act are subject to the Administrative Procedure Act, which requires an appeals process for any ruling by a federal agency.
The plaintiffs, Mike and Chantell Sackett, purchased, approximately, a two-thirds acre parcel of land (0.62) near Priest Lake, Idaho,
on which they planned to build a house. Shortly after they began
clearing the lot, the Sacketts received a Compliance Order from the U.S. Environmental Protection Agency, asserting that the property was subject to the Clean Water Act,
and that the Sacketts had illegally placed fill material into
jurisdictional wetlands on their property. After trying unsuccessfully
to obtain a hearing from the EPA, the Sacketts filed suit demanding an
opportunity to contest the jurisdictional basis of the Compliance Order.[2] Both the District Court[3] and the Ninth Circuit Court of Appeals[4]
ruled in favor of the government, holding that the validity of the
Compliance Order could be challenged only if and when EPA brings an
enforcement action seeking to impose civil and criminal penalties
against the Sacketts. The Supreme Court granted certiorari,
limited to the following questions: "1. May petitioners seek
pre-enforcement judicial review of the administrative compliance order
pursuant to the Administrative Procedure Act, 5 U. S. C. §704? 2. If
not, does petitioners' inability to seek preenforcement judicial review
of the administrative compliance order violate their rights under the
Due Process clause?"[5]
In
a unanimous opinion by Justice Scalia issued on March 21, 2012, the
Court held that EPA's compliance orders may be challenged in a civil
action brought under the Administrative Procedure Act (APA). The compliance orders are "final agency action" for purposes of the APA, and the Clean Water Act does not preclude judicial review under the APA.
Justices Ginsburg and Alito
each filed concurring opinions. Justice Ginsburg stated in her
concurrence that the ruling only permitted the Sacketts to challenge
EPA's assertion of jurisdiction over their property; the Court did not
resolve whether the terms and conditions of the Compliance Order itself
were subject to immediate judicial review. Justice Alito recommended
that Congress act to clarify issues regarding the reach of the Clean Water Act.
On May 3, 2012, the Court of Appeals for the Ninth Circuit
remanded the Sacketts' challenge to the compliance order to the district
court, consistent with the Supreme Court's opinion.
Decision after Remand
The
United States District Court for the District of Idaho ruled against
the Sacketts, finding that the area in question was a wetland and had
been filled without necessary permits.[8]
Sackett v. Environmental Protection Agency (2023)
Full case name - Michael Sackett, et ux. v. Environmental Protection Agency, et al.Docket no.21-454ArgumentOral argumentQuestions presentedWhether the United States Court of Appeals for the Ninth Circuit set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act, 33 U.S.C.§ 1362(7).Laws appliedClean Water Act
Sackett v. Environmental Protection Agency (Docket 21–454), also known as Sackett II (to distinguish it from the 2012 case), is a pending United States Supreme Court case related to the scope of the Clean Water Act.
Background
Chantell and Michael Sackett purchased a 0.63-acre vacant lot near Priest Lake, Idaho,
in 2004. They began construction of their home in the spring of 2007,
after attaining building permits from local authorities. Shortly after,
officials from the United States Environmental Protection Agency informed the Sacketts that their lot might be subject to regulation under the Clean Water Act,
as it contained "wetlands" that were "navigable waters". The EPA
directed the Sacketts to halt construction until they received a permit
from the United States Army Corps of Engineers. The Sacketts received an administrative compliance order from the EPA in the fall of 2007. In 2008, they sued under the Administrative Procedure Act. The lower courts held EPA compliance orders were not subject to the APA, but the Supreme Court reversed in a 2012 decision of the same name.
In the 2006 Rapanos v. United States decision, the Supreme Court decided the scope of the Clean Water Act in a 4–1–4 opinion. Justice Anthony Kennedy's solo concurrence offered a more sweeping interpretation of the Act's jurisdiction over navigable waters; Justice Antonin Scalia's plurality offered the narrowest interpretation. The Sacketts argued to the United States District Court for the District of Idaho
on remand from the Supreme Court that their land was not subject to the
CWA. In 2019, the district court applied Justice Kennedy's test and
held the lot was regulated by the CWA. The United States Court of Appeals for the Ninth Circuit affirmed in August 2021, and rejected an attempt by the EPA to moot the litigation by withdrawing the compliance order. The Sacketts filed a petition for a writ of certiorari.[1]
