2015 was not a good year for the U.S. Environmental Protection Agency.
n In August, the EPA polluted a Colorado river by causing the release of 3 million gallons of water contaminated with heavy metals, which can cause cancer and kidney disease.
n In June, the EPA confirmed dangerously high levels of lead in Flint, Mich.’s drinking water, but took no meaningful action.
n Also in June, the U.S. Supreme Court overturned an EPA Clean Air Act rule, saying the EPA exceeded statutory authority by failing to consider economic costs when imposing requirements on coal-burning power plants.
That last decision could have far-reaching impacts for ordinary citizens, who often get caught inadvertently violating wetlands laws, subjecting themselves to potentially ruinous fines.
Consider a case that made its way to the U.S. Supreme Court as recently as 2013. A Utah couple bought a house lot separated from a lake by other houses, intending to build their dream house. What they encountered was every family’s nightmare.
They procured local permits to build, and brought in fill to level the lot. The EPA intervened, said they filled waters of the United States and issued a compliance order to cease construction and remove the fill material. Fines for violating a compliance order can run as high as $75,000 per day.
They sought court review to challenge the EPA’s jurisdiction. Finally, the U.S. Supreme Court said yes, you can challenge the EPA’s jurisdiction to enter the order.
Of course, that is not a decision on the merits, just the right to challenge the EPA.
Now the EPA wants to expand its jurisdiction further, to encompass more isolated wetlands.
That will likely be decided by the U.S. Supreme Court. •
John M. Boehnert practices real estate and environmental law in Providence.