From Issac Gorodetski’s post on Point of Law:
Hans Bader, senior attorney and counsel for special projects with the Competitive Enterprise Institute, in a piece published on CEI’s blog OpenMarket.org, discusses the opinion and the EPA’s problematic regulatory policies.
The EPA has a practice of issuing “compliance orders” to property owners telling them to stop using their land and restore it to its prior condition, under penalty of $37,500 a day in fines, and declaring in such orders that such land is a federally protected wetland. It then waits months or years before actually suing the property owner for the fines, which accrue daily, potentially adding up to millions in fines. But in the meantime, it insists that the property owners can’t challenge its claim that their property is a non-usable wetland in court. If they want to take issue with its claim that their property is a “wetland,” they have to wait until the EPA sues them later on to collect those fines, after they’ve racked up potentially millions in fines under the compliance order….
There is no clear legal test for what a wetland is, since the last time the Supreme Court tried to come up with a definition in the Rapanos case, the judges split 4-1-4 on how to define it, splitting three ways in three different opinions each of which had a different test for what a wetland is. The EPA has seemingly flouted even the few principles shared among a majority of the Supreme Court justices (the four-justice plurality and Justice Kennedy’s concurrence), in its vague and manipulable guidance as to what is a wetland. In light of the huge fines that can be imposed on property owners, and the breadth and ambiguity of the EPA’s concept of “wetland,” which includes much land that seems like dry land to a layman, denying property owners the right to immediately challenge an EPA “compliance order” effectively forces them to do whatever the EPA said, even if the EPA’s position was arbitrary and capricious.