Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Sackett vs. EPA—Not Just About Wetlands

On March 21, the Supreme Court of the United States issued a decision in Chantell Sackett, et vir, Petitioners v. Environmental Protection Agency et al.  In a 9-0 decision written by Justice Scalia the Supreme Court held that the Sacketts could bring a civil action under the American Procedures Act (APA) to challenge an action taken by the U.S. Environmental Protection Agency (EPA).  EPA had ordered the Sacketts to stop placing fill material on their property and followed up with a ‘compliance order’ to restore the wetlands that the agency asserted were on the property prior to the addition of fill material.

Supreme Court allows Idaho couple to challenge EPA on wetlands ruling

http://www.washingtonpost.com/politics/supreme-court-allows-idaho-couple-to-challenge-epa-on-wetlands-ruling/2012/03/21/gIQAFgdsRS_story.html?wpisrc=nl_pmpolitics

This ruling today means that compliance orders under Section 404 will be subject to court appeals.  There is some concern this will reduce the number of compliance orders issued because EPA will need to consider the additional costs that may be incurred if their actions are appealed.  However, it is not clear this will be the case.  Last year EPA issued 92 compliance orders under Section 404. This is not a large number.

However, while the Supreme Court’s finding was very narrow, the case has received a lot of attention because it is viewed in the larger context of Clean Water Act jurisdiction, wetland regulation and private property rights.

The Pacific Legal Foundation, which provided legal counsel to the Sacketts, is a staunch supporter of private property rights.  They state:

“The right to private property is the fundamental basis for prospering economically and living secure and healthy lives. Through private property ownership, people retain incentives to create, to initiate and sustain progress, and to use resources more efficiently. The erosion of property rights is a very slow and subtle process that can take not just months, but years, even generations—one instance, one case at a time. The victims are the hardworking and self-reliant Americans struggling to attain—or maintain—the American Dream but who have been hampered by overzealous regulators.” http://www.pacificlegal.org/page.aspx?pid=258

Many people, whether they are private property rights proponents or not, would agree that an individual should have the right to appeal a final action by a government agency.  However, an underlying assumption of many private property rights advocates is that landowners always make good choices that don’t have any impact beyond the boundaries of their property.  This is simply untrue.

Many studies of flooding and other natural hazards conclude that draining and filling wetlands and floodplains increase floods downstream.  Run-off from fertilizers in the upper Midwest created a dead zone in the Gulf of Mexico.  Destruction of breeding habitat for migratory waterfowl, dams that impede salmon passage, houses, commercial real estate, and the roads and utility lines that connect them all, demolish and diminish the natural landscape increasing the costs of providing 1) drinking water, 2) protecting people or cleaning up from floods and hurricanes, and 3)sustaining the parts of the economy that depend on the quality of natural resources such as the commercial fishing and recreation industries.   The truth is that an inherent part of protecting private property rights is protecting the right to pollute the environment.  We all do it.  We all benefit.

The question is how much is too much?  The Clean Water Act was passed 40 years ago because the amount of pollution going into our Nation’s waters was intolerable.  There was agreement that national regulations to curb pollution were required.

It’s pretty clear from reading the Supreme Court’s decision documents with respect to the Sackett’s case as well as previous cases that some members of the court believe that EPA and the Corps regulate too many waters.

Are they right?  What’s really at risk anyway if individuals and corporations have the opportunity to do whatever they want to do to their property?

Many have read “The Tragedy of the Commons” about the problem that many individuals acting independently and rationally and in their own self-interest can deplete a shared resource.

Tragedy of the Commons http://dieoff.org/page95.htm

Analysis by Wikipedia http://en.wikipedia.org/wiki/Tragedy_of_the_commons

But I suspect that few have read Topsoil and Civilization by Tom Dale and Vernon Gill Carter which is an analysis of world history from the perspective of the critical relationship between the sustainability of past civilizations and healthy natural resources. http://wiki.community-harvest.org/images/8/83/Topsoil_and_
civilization.pdf
The authors state:

“Historical records of the last 6,000 years show that civilized man, with few exceptions, was never able to continue a progressive civilization in one locality for more than 30 to 70 generations (800 to 2,000 years).  There were three notable exceptions: the Nile Valley, Mesopotamia, and the Indus Valley…Aside from these cradles of civilization, however, civilized man’s dominance over his environment lasted only for a few generations.  After a few centuries of growth and progress in a favorable environment, these civilizations declined, perished or were forced to move to new land.  The average life span was forty to sixty generations (1,000 to 1,500 years).  In most cases the more brilliant the civilization, the shorter was its progressive existence.  These civilizations declined in the same geographical areas that had nurtured them, mainly because man himself despoiled or ruined the environments that helped him develop his civilizations.

How did civilized man despoil his favorable environment?  He did mainly by depleting or destroying the natural resources.  He cut down or burned most of the usable timber from the forested hillsides and valleys.  He overgrazed and denuded the grasslands that fed his livestock.  He killed most of the wildlife and much of the fish and other water life.  He permitted erosion to rob his farm land of its productive topsoil.  He allowed eroded soil to clog the streams and fill his reservoirs, irrigation canals and harbors with silt.  In many cases, he used or wasted most of the easily mined metals or other needed minerals.

Of course, man seldom created a complete desert from a formerly fertile land.  Sometimes he let the land to revert to jungle.  Usually, he left enough soil and vegetation to support a meager populations of seminomadic herdsmen or peasant farmers.  In some cases, he left enough to support a moderate city population.  But in no case, to date, has he left enough of the basic natural resources to support a progressive and dynamic civilization.”

It seems that science and  technology, as applied in our ‘modern’ society, is likely to accelerate the depletion of natural resources and the unhappy consequences that have led to the demise of civilizations for the past 6,000 years.   The fight for private property rights is not a fight for a sustainable future.  Neither is the assertion of unlimited government authority.   It is critical to find the right balance. It will not be easy and the way these challenges are currently framed—pitting big government regulations against economic growth—is the wrong paradigm.  It’s not about protecting natural resources versus having a vibrant economy.  It’s about having a healthy environment to support a sustainable economy.   To begin we must change our collective understanding of the real challenge before us.   Otherwise we imperil not only our own future but our children’s and those of future generations as well.  We cannot afford to fail.

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