By John McClaughry
On May 25 the U.S. Supreme Court handed down two really remarkable rulings in cases brought by the Pacific Legal Foundation. In Sackett v. EPA, the Court significantly narrowed the Environmental Protection Agency’s Clean Water Act authority.
By seizing and selling 94-year-old Geraldine Tyler’s condo over her $15,000 tax debt, the government violated the Takings Clause of the Fifth Amendment.
Now property owners like Mike and Chantell Sackett will no longer be threatened with thousands of dollars in Clean Water Act fines and blocked from building a home on their land. Instead, the EPA will only be able to regulate legitimate wetlands that have “a continuous surface connection to bodies that are ‘waters of the United States.”
The decision — authored by Justice Samuel Alito — clears up 50 years of confusion and puts a check on the EPA’s decades-long mission creep by restoring the scope of the Clean Water Act to what Congress intended. Say goodbye to the notorious regulation called WOTUS – Waters of the United States.
The Court followed the Sackett ruling with a decision in Tyler v. Hennepin County [Minnesota]. In that case, all nine justices agreed that when settling tax debt, the government cannot take more equity than a property owner owes in taxes. By seizing and selling 94-year-old Geraldine Tyler’s condo over her $15,000 tax debt, the government violated the Takings Clause of the Fifth Amendment.
The Pacific Legal Foundation said “The Tyler decision is a vindication of fundamental property rights. It will change the lives of thousands of Americans across the country.” Thank you, PLF.
John McClaughry is vice president of the Ethan Allen Institute. Reprinted with permission from the Ethan Allen Institute Blog.
I now wonder if the ruling of the VT Dept. of Nat. Resources, by denying me a pond permit and declaring 1/4 of my property a “Class 2 wetlands” , could be overturned? They offered only “protecting amphibians” as a reason. What does a pond contain, but frogs , salamanders, fish?
Of course, it depends on your specific case. But the EPA and ANR typically abuse/exaggerate the definition of ephemeral and intermittent streams and bogs most often. Temporary standing water in a corn field during spring snow melt, for example, (a condition you’ve all seen from time to time), can be regulated by an agency zealot. It depends on the individual agent, your existing condition, and the logical fallacy you are forced to encounter.
Two choices come to mind.
First, hire an engineer with expertise to design your pond in a responsible fashion, reapply, and sue the DNR if they deny you the permit. This recent SCOTUS decision is in your favor.
Second, hire an engineer to design the pond for you, document the design specifications, and build it without a permit. Then let the DNR sue you and take your chances in court.
But keep in mind that the Vermont legislature is as fanatical as any, with a supermajority. They have already been arrogant enough to concoct laws that offend the first and second amendments of the U.S. Constitution – not to mention our educational, medical, and reproductive rights. And they show no signs of respecting individual rights in the future, all the while refusing to accept responsibility for the damages resulting from their policies.
‘Lawfare’ is now the name of the game.
A third option – get out of Dodge while you still can.