Supreme Court Delivers A Second Defeat To EPA’s Agenda In Just 7 Days

REUTERS/Joshua Roberts

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Michael Bastasch DCNF Managing Editor
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The Supreme Court sided against the federal government in another wetlands case, which could make the Environmental Protection Agency’s plan to extend its control over more bodies of water on private property even harder.

Justices granted the company Kent Recycling Services’ petition for a rehearing of its case against the federal government in light of the court’s ruling last week, which curtailed agencies’ abilities to control private property.

“Simply put, it re-affirms that property owners across the country can hold overzealous federal bureaucrats immediately accountable in court for erroneous assertions of control over wetlands,” Mark Miller, an attorney with the Pacific Legal Foundation, wrote in a blog post.

“This levels the playing field for landowners who have been at the mercy of an overreaching federal government for far too long,” Miller wrote.

A lower federal court will now have to review Kent Recycling’s case in light of the recent high court ruling.

Kent Recycling planned on buying wetlands that were exempt from federal control since they were converted into croplands before 1985. The company planned on turning the land into a waste disposal site, but the Army Corps of Engineers said it couldn’t, citing a recent policy getting rid of the old croplands exemption.

Kent Recycling sued the Corps, but lost in two lower courts, which held the Clean Water Act did not allow people to challenge a federal takeover of privately-owned wetlands until after a lengthy permitting process had been completed.

But that was before the Supreme Court ruled against the Corps in a case, also brought by PLF, just last week. In that case, Justice Roberts ruled that Hawkes Co., a family-owned business in North Dakota, could immediately challenge a federal agency’s decision to prevent them from using their private property.

“This leveling of the playing field for landowners now applies across the nation—not just for Hawkes Company, not just for Kent Recycling Services, but rather for all Americans,” Miller wrote of the two cases.

Both Supreme Court decisions could touch upon the EPA’s newest water regulation. EPA issued a rule last year expanding its authority over U.S. bodies of water, even those that are on private property.

There are 32 states suing EPA over its water rule, which they argue would erode their own authority to regulate waters and open residents to massive fines from EPA.

“The results of this rule will carry a tremendous cost to our state, our economy, and our families,” South Carolina Attorney General Alan Wilson said in a statement announcing the state’s intention to sue the agency. “Road project mitigation costs alone could range from $180,000 to $2.8 million or fines of $37,000 per day.”

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