Saturday, January 07, 2012

One to Watch: EPA v. Sackett

The lawyers are asking for SCOTUS review.

...The hearing before the U.S. Supreme Court on Monday will focus on the EPA’s claim of authority to issue orders that are above court review – and how that could impact virtually every landowner across the nation.

The brief submitted to the Supremes by Pacific Legal Foundation explained that even though the Fifth Amendment to the U.S. Constitution requires that “no person shall be … deprived of life, liberty, or property, without due process of law,” the EPA claims through the Clean Water Act the authority to issue orders as it wishes and collect fines for “violations” – without court review.

“If the EPA has completed an analysis and made a determination that the property contains jurisdictional ‘wetlands,’ the citizen has no right to judicial review of that analysis. If the citizen hires professionals to conduct a ‘wetlands’ determination, EPA is not obligated to accept it. Despite any evidence, professional opinions, or agency advice the citizen obtains, EPA may still impose sanctions by a compliance order if it has ‘any information’ that” it wants to use to call it wetlands, the brief explains.

Further, the EPA’s “compliance order” demands that the private property owners give the EPA full access not only to the lands but to their private records about what is done to the land.

Given that the order is not based on probable cause, it withdraws the Sacketts’ constitutional right to be free of unreasonable searches by requiring them to grant access to ‘all records and documentation related to the conditions at the site and the restoration activities conducted pursuant to this order.’”

So it's both 4th AND 5th Amendment.

You know my editorial stance already.  The acronym?  B. M. A.


Billiam said...

I don't trust the court. Remember Kelo? I do believe that Scalia voted against the property owners.

neomom said...

The comments from Scalia, Roberts, and Alito were promising. Thomas doesn't ever ask questions. Kennedy is the wild card. But who knows, every once in a while, even the liberals on the court surprise us on the "due process" cases. I wouldn't be completely shocked if ACLU Ginsburg rules for the Sacketts.

That said, if they lose, we are doomed.