Friday, January 27, 2012 4:14 pm | By Paul Petrick
Last year the Ninth Circuit Court of Appeals once again used the Clean Water Act to bludgeon industry and property owners. In Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, the nation’s most infamous appellate court held that the Environmental Protection Agency (EPA) had been misinterpreting its own regulations for more than three decades. The EPA has traditionally considered the cultivation of trees to be an agricultural activity. The jurists of the Ninth Circuit have determined that they have the expertise to overrule decades of regulatory precedent and deem forestry a manufacturing activity. Unfortunately for the two and half million Americans employed by forestry, this ruling poses an existential threat to their livelihoods.
The Clean Water Act stipulates that runoff from manufacturing concerns be strictly regulated by the EPA. If the Ninth Circuit decision is upheld, storm runoff from forest roads would require a permit and be subjected to a myriad of new regulations. If the increased compliance costs do not decimate foresters, the litigation will. The Clean Water Act has long been utilized by well-funded environmentalists as justification for bringing industry to court.
The Ninth Circuit’s ruling has been appealed and the Supreme Court will decide whether or not to grant the appeal at the end of its current term. Last December, the Court asked the Solicitor General to file a brief detailing the position of the Obama Administration. As the nation struggles with stubbornly high unemployment, the Obama administration should consider the needs of the twenty-six states that have filed amicus curiae briefs petitioning the Supreme Court to hear this case. If not overturned, the Ninth Circuit Court of Appeals will once again have burdened job creators with millions of dollars in lost time and money. The reigning Supreme Court justices should not let the regulation of rainwater rein in economic growth.
Indiana Considers Eminent Domain Reform
Tuesday, January 24, 2012 9:29 pm | By Paul Petrick
On January 12, the Indiana Senate Committee on Corrections, Criminal, and Civil Matters passed Senate Bill 54, an important step in the fight against eminent domain abuse. This legislation would mandate that state universities seeking to acquire private business property compensate the business owner for estimated future earnings in addition to the traditional fair market value of the property. Senate Bill 54 is the brainchild of State Senator Doug Eckerty (R-Yorktown) and was prompted by the plight of a Muncie, Indiana businessman who found himself in competition with the biggest of all big businesses, the government.
Read more after the jump...
Supremes Question EPA Supremacy
Tuesday, January 17, 2012 10:01 pm | By Paul Petrick
On January 9, the U.S. Supreme Court heard oral arguments in a case involving yet another instance of Environmental Protection Agency (EPA) overreach. Sackett v. EPA involves two Idaho property-owners with a .63 acre parcel near idyllic Priest Lake. In 2007, Michael and Chantell Sackett sought to build a home on their bucolic real estate and began preparing their land for construction. Their dreams were thwarted when the EPA asserted that their property was a federally protected wetland. The EPA ordered Mr. and Mrs. Sackett to reverse their actions and obtain a multi-thousand dollar permit prior to any subsequent home construction. Non-compliance with this order would have resulted in a fine of more than $30,000 per day.
The issue before the Court is whether the EPA’s authority to issue non-reviewable compliance orders under the Clean Water Act violates a property-owner’s Fifth Amendment right to due process. Not surprisingly, the comical Ninth Circuit Court of Appeals refused to uphold this basic protection against government expropriation. Fortunately for the Sacketts, the jurists of the High Court appeared to recognize that the Obama Administration’s argument did not pass the laugh test. Justice Samuel Alito labeled the government’s conclusions as “outrageous.” Chief Justice Roberts gave Deputy Solicitor General Malcolm Stewart a taste of his own medicine by asking “What would you do [if you were the Sacketts]?” Even the Court’s liberal bloc got in on the action with Justices Breyer and Kagan ridiculing the actions of the EPA.
Unfortunately, the Sacketts will have to wait until the end of June for the Supreme Court to determine their fate. Until then, they will have to continue to bear the cost of lost time and treasure from their encounter with heavy-handed bureaucrats. Idaho may be the land of potatoes, but leave it to the EPA to ensure that the only thing to get mashed is property rights.