The Supreme Court vs. the EPAJanuary 12, 2012
The Supreme Court is taking a fresh look at the Environmental Protection Agency's use of the Clean Water Act to bully, intimidate, and control the actions of private individuals on private lands in the name of environmental controls.
At issue is the constitutionality of the EPA's use of "administrative compliance orders". This power, authorized by the Clean Air Act, authorizes the EPA to intervene in activities that it deems inconsistent with its environmental rulebook, and to this point it has been exercised without presumption of prompt judicial review. The government is arguing in this case that judicial review of these orders is not necessary and that such orders can be contested in other ways. The citizens in this case are arguing that the right to judicial review is inherent in any regulatory order.
But why have these citizens been put in this position in the first place? The EPA was created by Congress in 1970 to, as their Web site says, "consolidate in one agency a variety of federal research, monitoring, standard-setting and enforcement activities to ensure environmental protection." This charter, noble or not, does not elevate the agency above the basic structure of government and above the power of the judiciary to review its actions in light of the law and the Constitution.
The Constitution does not authorize the EPA. Per Article 1, Section 8, Congress does not have the power to regulate the environment, nor is it granted the power to create an executive agency to manage such regulation. In the name of regulating interstate commerce, Congress may assume such authority -- read here about the actual, original intent of the "interstate commerce" clause -- but the land in this case involves designated wetlands located within northern Idaho, and the activity in question involves building, not transacting. As such, there is no interstate commerce in this case.
Justice in this matter would stem from a thorough review of the EPA's charter, stated mission, and real-world activities on the ground, all through the lens of the Constitution to determine what, if any, role this agency should have in the federal government. A careful look at Article 1, Section 8 of the Constitution, along side the Tenth Amendment, can only show that the EPA, as we know it today, must be dismantled.
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