Epstein on Sackett v. EPA
There is much that is entirely surreal about the modern administrative state, with its systematic tendency to overreach the bounds of law and of common sense. No where is this more painfully evident than in the Environmental Protection Agency’s zealous enforcement of the Clean Water Act, which was, thankfully, slapped down this week by a unanimous Supreme Court in Sackett v. EPA.
On its face the key provisions of the CWA are the soul of good sense. The provision makes it illegal for any person to “discharge “ a pollutant into “navigable waters” of the United States. It is easy in the abstract to applaud a statute that seeks to strengthen the ordinary private remedies against pollution, at least if it's directed against clandestine maneuvers of shady operators to dump drums of waste oil in a river in the dark of night.
But the EPA does not stop with the obvious and useful. Instead it has relentlessly sought to expand its own scope by a two-pronged attack. The first was to expand by regulation the definition of navigable waters so that it includes any wetland adjacent to a navigable body of water. Pursuant to that elastic definition, the EPA told the Sacketts that they were sitting on top of a wetland when they sought to build a house on 2/3- acre plot in northern Idaho separated by several other lots from a local lake. Adding rock and dirt fill to their property was absurdly construed as a discharge of pollutants by a set of pro forma charges that neglected to allege how rock or dirt fill constituted so much as a single particle of anything from which the nearby Priest Lake needed protection.