Fed Court Strikes Down Obama EPA’s Rights-Killing 'Waters of the US' Rule

P. Gardner Goldsmith | September 3, 2019
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There are very few good things one can say about Richard Nixon’s monstrous creation, the inaptly labeled “Environmental Protection Agency”. Since given bureaucratic life in 1970, it’s continuing line of edicts and fines have shut down businesses, prevented others from starting, and seen people kill endangered animals rather than have government officials discover them and make their land worthless.

Just ask Jack and Jill Barron, of Lamb Creek, Idaho, who got hit twice by the EPA while trying to build a home for his retirement on his property.

Townhall reports:

A blocked drainage ditch caused the area to flood. Jack used his construction equipment to remove the debris blocking the ditch and the water receded. Then, the EPA came in and more or less ruined their lives. The Barrons were targeted by the agency for violating federal wetland laws. The government took him to court for bringing gravel onto his property. Barron won, but the EPA still said he was facing $37,500 in fines per day if he didn’t restore the property to its original state, which again was a flooded  due to a blocked drainage pipe. In the end, the retired couple has pretty much lost everything. 

It took thousands of dollars, and years of fighting, for the Barron’s to win in court, but even with the win, the EPA told them they had to restore the wetland under the 2015 “Waters of the United States” (WOTUS) rule -- which meant they couldn’t build their home properly.


As Gover Norquist noted about the EPA last week in an interview with John Stossel:

They were including little trickles, the kind of ponds that spring up when it rains a lot one night, then it goes away the next day. They were using it as land control.

But now, things might change. Shane Trejo reports for Big League Politics that US District Judge Lisa Godby Wood has ruled in favor of ten states’ Attorneys General against WOTUS because, she noted, the rule “violated the Administrative Procedure Act and The Clean Water Act and it was, therefore, “unconstitutional.”

Well, it’s not “unconstitutional” because it violated the other acts. It’s unconstitutional because, regardless of whether people are being treated kindly under “Administrative Procedure”, “Administrative Procedure” is not “Due Process” in a court of law, which is what is required before someone is punished, according to the Fifth Amendment. Additionally, the WOTUS Act violates the Sixth Amendment requirement that anyone accused of a crime be afforded a trial by jury, to be able to face his or her accuser, and to have a lawyer provided by the state should he or she need one and be unable to afford his or her own.

But, regardless of Judge Wood’s frustrating blindness to these rather important matters, she did find concrete problems with the ambiguity of the WOTUS statute, something which, despite missing the forest for the trees, is worth noting, at least:

The court finds that both because of its combination with tributaries and the selection of over-broad geographic limits without showing a significant nexus, the adjacent waters definition in the WOTUS rule is unlawful under Justice Kennedy’s Rapanos opinion.

So, via the court, and with Donald Trump’s change in EPA policy over the regulation, it appears that people like the Barron’s can breathe a bit more easily.

Or can they?

As noted, Judge Wood only found against the regulation on statutory grounds, not really on constitutional grounds, and the very existence of the EPA’s regulatory structure is patently unconstitutional due to its infringements of the Fourth, Fifth, and Sixth Amendments, not to mention that the Founders only intended the federal “interstate” powers to cover crimes perpetrated across state borders or state-versus-state disputes. Preemptory “regulation” of private land is so far off the constitutional map as to be terra incognita, and the idea that the EPA can “fine” people for environmental damage when there has been no claim by any person for said damages, as is required for tortious law, indicates that the fine system of the EPA is also highly questionable.

Then there is the way in which EPA regs backfire, inspiring people to take measures they normally would not, if they didn’t have to worry about EPA interference.

As Terry Anderson writes for The Hoover Institution, this is a common unintended consequence of environmental “regulation” – which is really a form of “taking” by government without recompense. Indeed, rather than consider the restrictions on land use a form of taking akin to eminent domain, the feds have flipped the concept on its head, and consider the landowner the “taker” from nature, all to disastrous effect:

'Taking' endangered species within the United States has gone far beyond literally killing plants and animals to include taking of habitat that does or might harbor endangered species. The result is what many private landowners call the '3 S’s'—shoot, shovel, and shut up—lest your land-use is regulated by the federal government. In other words, endangered species are a liability rather than an asset.

And, sadly, the worst entity to trust with the environment has proven itself time and again to be the government, since it has no private property incentive to keep things clean and not pollute other peoples’ land and water.

The trouble is that the government can not only draw on your tax dollars to promote its “glorious” environmentalism, bureaucrats have incentives to enflame worries over the environment in order to increase their budgets, and all we can do is hope that the government – be it the Executive, Legislative, or Judicial branch, or some combination – grants us some royal reprieve.

Because of Richard Nixon, and regardless of Trump’s laudable moves to give us one of those reprieves, we will always have to be concerned that the EPA's great waves of regulations will end up submerging the rights of Americans. Its ripple effects have already eroded many constitutional shores, making it difficult for individual and property rights to remain anchored.