It sounds like a bad dream — a really bad dream — but in a matter of days or at most weeks the Environmental Protection Agency (EPA) could become our national zoning board. Some say that, with the passing of Justice Antonin Scalia, the chances just became much bigger.In the WOTUS regulations, EPA has effectively claimed the authority to regulate land use anywhere that precipitation falls; in other words, everywhere. They won't assert this authority all at once, of course, because massive resistance might turn the tables. In any event, they don't have the staff to enforce it at the microlevel they would like, but like boiling the frog, they will slowly increase the pressure on land owners, taking the worst cases first, and when they need more staff, asking Congress for more, and in the meantime starving other functions of the EPA to pay the bills. Eventually, it will take permission from the EPA to turn a shovel in the garden, and change the contours of the land, with the permit coming months after the site visit, paid by the landowner, of course, and months for the decision to be made.
The reason is that the Supreme Court is about to decide whether to give the environmental agency the authority to make land use decisions throughout the nation. The court will not even have to hear arguments in American Farm Bureau Federation v. EPA to do this. It will only have to decide not to hear the appeal of a Third Circuit decision.
You don’t have to be a legal expert to have heard of the EPA’s Waters of the United States (WOTUS) regulation, stayed by the Sixth Circuit in October. As one newspaper put it, WOTUS empowers regulators to “micromanage any creek, pond or prairie pothole” and the land around them. In American Farm Bureau Federation v. EPA, the 3rd Circuit gave EPA the go-ahead to impose even farther-reaching control.
In an executive order signed weeks after taking office. President Obama instructed the environmental agency to “make full use of its powers” to lower the levels of phosphorus, nitrogen, and sediment in rainwater runoff, groundwater movement, and tributaries that reach the East Coast’s Chesapeake Bay. He added that this was to be done in a manner that “can be replicated” nationally. The goal was an EPA blueprint for watersheds covering the entire American landmass — from East Coast to West, including Alaska and Hawaii. But this “blueprint” wasn’t so much about improving the environment as grabbing more power to Washington.
And that's why the next Supreme Court Justices is so damned important.