Thursday 03-22-12

I guess you could say that it is better then normal.

U.S. top court backs landowners, limits power of EPA

The Supreme Court ruled on Wednesday that landowners can sue to challenge a federal government compliance order under the clean water law, a decision that sides with corporate groups and puts new limits on a key Environmental Protection Agency power.

The justices unanimously rejected the government's position that individuals or companies must first fail to comply with an EPA order and face potentially costly enforcement action before a court can review the case.

The opinion by Justice Antonin Scalia was a victory for an Idaho couple who challenged a 2007 EPA order that required them to restore a wetland they had filled with dirt and rock as they began to build a new vacation home near Priest Lake. They were also told to stop construction on the home.

The couple, Chantell and Michael Sackett, denied their property had ever contained a wetland and complained they were being forced to comply with an order without a court hearing.

Their appeal drew support from the Chamber of Commerce, the National Association of Manufacturers, the National Association of Home Builders and General Electric Co, a company that had made a similar challenge to the EPA compliance orders.

The Supreme Court's ruling comes at a time when the EPA has faced fierce criticism from many Republicans in Congress who say it has issued the most ambitious clean air regulations in decades and has become heavy-handed in enforcement actions.

Scalia concluded the Sacketts may bring a civil lawsuit under the Administrative Procedures Act to challenge the EPA's order.

He said that since the EPA's decision was final and the couple faced potential large fines, they had no other adequate remedy but to bring a civil lawsuit.

Reading his decision from the bench, Scalia said that the Clean Water Act does not prevent judicial review of such orders.

Under the law, violations of the Clean Water Act can result in fines of up to $37,500 per day, plus as much as an additional $37,500 per day for violating the EPA compliance order.

The EPA issues nearly 3,000 compliance orders a year that require accused violators of environmental laws to stop alleged harmful actions and repair any damage that was caused.

The justices overturned a U.S. appeals court ruling that a compliance order was not subject to judicial review until later when the EPA has brought an enforcement action and seeks to have a judge rule in its favor.

'DAY IN COURT'

The court did not reach the broader question of whether the EPA's order violated the constitutional right of due process. It only held that the Administrative Procedures Act, which provides certain rules for federal regulatory agencies, applied.

Scalia said that the Sacketts would not get an adequate remedy if they had to apply to the Army Corps of Engineers for a permit and then file suit if that permit was denied.

He said the Clean Water Act was not "uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review."

Scalia concluded the 10-page opinion by saying the EPA's orders will remain an effective way to secure prompt, voluntary compliance in the many cases when there was no substantial basis to question their validity.

Justice Samuel Alito wrote a short separate opinion concurring in the outcome. He said allowing property owners to sue was better than nothing, but urged Congress to adopt new legislation clarifying the reach of the Clean Water Act.

Government attorneys had defended the compliance orders as a quick way to stop environmental damage and argued that allowing accused polluters to get a court hearing would tie the EPA up in lengthy litigation.

An attorney for the Sacketts argued that they should not have to wait for years for judicial review until the EPA decides to go to court and said the compliance order was coercive, requiring action to avoid potentially huge fines.

Damien Schiff, the attorney for the couple, hailed the ruling. "EPA is not above the law," he said.

"That's the bottom line with today's ruling. This is a great day for Mike and Chantell Sackett, because it confirms that EPA can't deny them access to justice. EPA can't repeal the Sacketts' fundamental right to their day in court," he said.

Jon Devine, senior attorney in the water program at the Natural Resources Defense Council, said the EPA still can issue compliance orders.

"The Supreme Court did not give anyone a license to pollute. Pure and simple. Those who pollute our waters will still be held accountable," he said. The ruling "grants recipients of such orders, at a time of their choosing, a day in court to challenge them to promote speedy resolution of pollution problems."

The Supreme Court case is Sackett v EPA, No. 10-1062.

http://www.reuters.com/article/2012/03/21/us-usa-court-epa-idUSBRE82K0YT20120321

But we still have a long way to go as far as liberty is concerned.

Burnsville Man Arrested, Jailed for Siding Code Violation

A Burnsville man on his way to work was arrested and thrown in jail without bond, and then subjected to electronic home monitoring.

But it wasn’t for drugs or a DWI or some other major crime.

Burnsville city leaders say Mitch Faber’s dealings with the law all stem from his failure to properly put up siding on his house.

Yep, siding.

Faber says he had every intention of completing the stucco and decorative rock project on his home but he ran into money troubles when the economy soured. Burnsville leaders say they had no choice to enforce the law.

Here’s how a simple code violation spiraled into a criminal case:

Mitch and his wife Jean say it all began back in 2007 when they received a letter from the city of Burnsville saying, in part, "you must complete the siding of your home."

“We were in the process of finishing,” Mitch insists. “This wasn't something that we were trying to avoid doing.”

But in 2009 there were two more warning letters, and in 2010 yet another--this time requiring Faber to appear in court. Burnsville leaders provided 5 Eyewitness News with these 2010 photos of the Fabers' home as proof there was a problem.

“I was expecting maybe a $700 fine,” Faber said. Instead he was given an ultimatum -- finish the siding or go to jail.

So Mitch returned to his house and he and Jean say they spent about $12,000 putting a stucco façade over the plywood exterior. They thought they were finally in compliance. They were wrong.

Faber was then taken into custody in November 2011 after Burnsville inspectors ruled the work was still not satisfactorily completed. A warrant for his arrest had been issued when, according to the city, Faber failed to turn himself in because the house was still not up to code. Faber is adamant it was. Regardless, what came next, he says, was absolutely uncalled for and humiliating.

“I'm walking around in a green and white jump suit, I had to shower in front of a sheriff, I was shackled, my wrists were handcuffed to my waist — for siding.”

“It was insane,” said Jean. “Absolutely insane.”

After two days locked up, a judge agreed Mitch should be released but required him to submit to electronic home monitoring. In Dakota County, that process requires participants — no matter what their crimes -- to blow into a drug and alcohol device every time an alarm goes off.

“They could call me at 2 in the morning and they did,” Faber said.

Burnsville city leaders would not grant 5 Eyewitness News an interview about the Faber case but in an email from Communications Coordinator Marty Doll, he wrote, “”The city feels it provided Mr. Faber ample opportunity (nearly four years) to remedy the situation before issuing a citation…the city’s practice is to only issue citations for property maintenance issues (such as this one) as a last resort. In this case, the city determined a citation was the next appropriate course of action. Once the citation was issued, the matter had essentially left the city’s hands and entered the hands of the court system.”

5 Eyewitness News also called Dakota County Corrections as well as Midwest Monitoring (the company in charge of the electronic home monitoring) but calls were not returned. In a letter dated February 21, 2012, Dakota County Attorney Jim Backstrom wrote the Fabers, “This was a prosecution initiated by the city of Burnsville through their privately-retained city prosecutor. The County Attorney has no oversight or supervision over city prosecutors…While it was a district court judge who heard this case and made decisions pertaining thereto, judges are employed by the state of Minnesota and not Dakota County.”

The Fabers point to what they call far more glaring code violations outside other houses in their neighborhood. They’d like to know why they were targeted and others weren’t.

“It’s selective enforcement,” said Jean.

Most importantly, though, the Fabers say Burnsville made a mockery of an otherwise law-abiding man.

Asked Mitch, “What did you accomplish other than wasting the city's money, the county's money, our money, and then all the mental and emotional anguish? What did you accomplish?”

http://kstp.com/news/stories/s2542281.shtml