It’s hard not to feel for Mike and Chantell Sackett, the
Idaho couple who in 2007 saw their plans for a dream home on a remote Idaho
lake kiboshed by the U.S. Environmental Protection Agency. Last week, when
their case against the agency became the first case of 2012 to go before the U.S. Supreme Court, their lawyer, Damien
Schiff, told a story of shock and deprivation, one designed to terrify independent
dream-home builders nationwide. “They have been injured by the EPA,” he argued.
The agency’s “arbitrary and capricious” decision making has “turned their world
upside down.”
But Sackett v. EPA might also terrify another segment of the population: Those people whose livelihoods
depend on tourists who come to National Forests to fish, relax or otherwise
enjoy untreated clean water and landscapes untrammeled by unsupervised development;
people concerned about the country’s water supply and our collective power to
protect it. Because as the case plays out in the news, the agency and its staff appear increasingly distanced from the people whose natural resources they’re charged with protecting. The Sackett saga does not make the EPA look good.
As the story goes, people in the Sacketts’ employ were
happily dredging away on their new lot one afternoon when three officials from
the EPA turned up and told them to stop. The workers were, said the agency’s
representatives that day, destroying a wetland protected by federal law. The EPA then slapped the Sacketts with a
“compliance order” threatening up to $75,000 per day in fines — $37,500 for disobeying
the EPA’s orders to halt construction, and the same sum again for violating
Section 404 of the Clean Water Act, the part that says you can’t fill in
wetlands without a permit.
The Sacketts lost the $23,000 they invested in their land
and their plans were crushed. Worse, they couldn’t even challenge the EPA in
court, because a mere compliance order, however threatening, isn’t subject to that
kind of thing, even though the threat of fines is real. Apparently you can only
challenge the EPA before a judge when they’re about to throw you in jail.
That narrow issue — that the Sacketts have been deprived of their
Constitutional due-process rights — is the issue over which the Sacketts
decided to sue, and their lawyers at the Pacific Legal Foundation, who live to
dismantle environmental laws, have taken it up joyously. Never mind that defending such orders in court — EPA issues thousands of them every year — would leave the EPA’s staff no time for enforcement. Schiff’s passionate arguments
in the hearing portrayed the Sacketts as a helpless couple trapped in a
no-man’s land between the permit-granting U.S. Army Corps of Engineers and the police-like
EPA, uncertain whether their little two-thirds of an acre in paradise contains
wetlands and what the term “wetland” even means.
The EPA’s lawyer on the other hand, Malcolm Stewart, plunges the
court into a thicket of legalese from which little useful information emerges unscathed. “We believe that the following steps are necessary in order to
achieve perspective compliance with the act, and if you don’t do these things
you will be subject to the following penalties because you will then be in
violation of the act and you will be subject to the penalties,” Stewart argued,
to which Chief Justice John Roberts appropriately replied, “I didn’t follow that.”
One fact, however, comes through loud clear: No one has a clue
anymore what the Clean Water Act means — maybe not even the EPA itself, despite
its ongoing efforts to craft a rule to clarify it. And even if the nine justices uphold two lower court opinions and throw
the case out, the EPA’s staff will still come out looking like the bullies
Chantell Sackett says they are — or worse, as Idaho Senator Jim Risch recently
phrased it, the “Gestapo.”
I’ll be honest here. I’ve invested many hours in
contemplating the Sacketts’ case — watching them testify at Kentucky Senator Rand Paul’s
Property Rights Forum last October;
listening to them hobnob with commiserating right-wing radio host Peter Schiff —
and I’m inclined not to put much stock in what they say. The Sacketts run an
excavation and construction business near the lake; and it’s no secret in the construction industry that you can’t cavalierly fill a lake-adjacent lot with rocks and sand. They’re backed by giant industrial polluters like General
Electric. And neither Mike nor Chantell seem to care much about the beauty and
balance of the forest they were so keen to inhabit: When Schiff asked Chantell whether there was any wildlife on the
property, she mused that “maybe once in a while a deer runs through.”
But in fact Priest Lake is in the pristine Kaniksu National
Forest, which stretches across three states; the local tourism board touts it as home to “black and grizzly bears, whitetail and mule deer, moose,
elk, wolves, a small herd of mountain caribou, mountain lions, bobcats,
mountain sheep and a few mountain goats.” The lake, fed by undisturbed mountain
streams, has been designated critical habitat for the threatened bull trout.
Even the owners of the local golf course, four miles down
the shoreline from the Sackett lot, brag about their property’s most unique
feature: wetlands. Whatever the fallout from the U.S. Supreme Court’s 2006 ruling on Rapanos v. United States, the case of the scofflaw
Michigan developer that threw the term “waters of the U.S.” into limbo, protecting Priest Lake for everyone who depends on it falls solidly within the EPA’s
mandate. That means restraining developers of all sizes who might allow foreign
dirt to slide off their carelessly designed property. That’s why we demand that
people get permits — so someone of authority knows what they’re doing, and
makes sure they’re doing it right.
But unless someone at the EPA, or in the Obama administration, steps up to tell that side of the story, these kinds of
little-guy-faces-down-the-feds scenarios will continue
to queer the discussion over how best to protect our water, air and wilderness. They will bolster the efforts of anti-EPA legislators such as Senators John Barrasso (R.-Wyo.) and Dean Heller (R.-Nev.), who in November tried to push through a budget-bill rider
to stop the EPA from defining what waters the Clean Water Act protects. Sackett v. EPA could have been a teachable experience, starting
with the moment the three officials showed up at the Sacketts’ lot, responding
to the complaint of a sensitized local resident. Instead, it’s another reminder that the federal agencies
Congress created to protect our environment have a bigger problem communicating with the public than they’d like to admit.
Judith Lewis Mernit is a contributing editor at High Country News.
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