“The Clean Water Act prohibits the discharge of any pollutant by ‘any person,’ without a permit, into ‘navigable waters’,” noted the Supreme Court in the summary of its just concluded ruling in Sackett v. Environmental Protection Agency.  It went on in that summary:

The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act.

A little background at this point: the case got to the Supreme Court because Mike and Chantell Sackett began construction on their dream home in 2007, on a lot completely surrounded by a developed residential neighborhood, complete with lots of already existing sewer lines.

The EPA decided that this completely residentially surrounded lot had wetlands on it connected to navigable waters, and it issued a compliance order to desist from construction and to restore the wetlands (violation of the order carried potential penalties of $75,000 per day—for those keeping score at home, that works out to an accrued penalty of $130 million).  Rather than rolling over and giving up on their dream, the Sacketts sought relief in Federal District Court for the District of Idaho (their property was in Bonner County, ID), arguing among other things an illegal taking under the Constitution’s 5^th Amendment.  The Court dismissed and the Ninth Appellate (of course) sided with the EPA and upheld the District Court.  After all, the Ninth held, the CWA has no mechanism for a private citizen to object to the EPA’s diktat, and so there was no standing to sue.  The Sacketts appealed to the Supremes.

The Supreme Court’s unanimous ruling was short and sweet in its essence:

The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order.

Justice Antonin Scalia, writing for the Court, also had this to say about the government’s arrogance, particularly its claim that were EPA compliance orders subject to judicial review, the EPA’s ability to enforce clean water protections would be interfered with [emphasis mine]:

The Government warns that the EPA is less likely to use the orders if they are subject to judicial review.  That may be true—but it will be true for all agency actions subjected to judicial review.  The APA’s [Administrative Procedure Act, which provides for judicial review of agency rulings and orders] presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.  And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.

Justice Samuel Alito, in a concurring opinion, added this about the government’s arrogance [emphasis added]:

The position taken in this case by the Federal Govern­ment—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. …

Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. … In a nation that values due process, not to men­tion private property, such treatment is unthinkable.

Although this particular EPA abuse began under another administration, it remains a glaring example of the unbridled self-importance of the agency and of its routine reach for additional power.

It’s also clear example of the necessity of abolishing this agency: it’s too far, and for too long, out of control, and it is irredeemable.