The latest Supreme Court case dealing with alleged violations of Section 404 of the Clean Water Act involved the conviction, upheld by the Ninth Circuit Court of Appeals, of the late Joseph Robertson.
His crime? Building a firebreak ditch and some ponds on his Montana property.
Robertson, arrested at age 77, was targeted because the government maintains that his protection ponds and narrow ditch located in the northern Montana woods have become increasingly prone to destructive, life-threatening fires. But the government’s claim is suspect.
The Robertsons know a lot about how to fight fires. In fact, they operated a small firefighting support truck business. Knowing the fire danger, they built several ponds so they could fill up multiple water trucks to fight wildfires. But the EPA seized upon his firefighting efforts and claimed he had violated Section 404 of the Clean Water Act. The EPA called this tiny ditch a federally protected commercial waterway that required a federal permit — even though the Robertsons’ land was 40 miles from the nearest navigable waterway.
Robertson was charged with failing to obtain a Section 404 permit from the U.S. Army Corps of Engineers and sent to prison for 18 months and fined $130,000. His conviction and fine were later upheld by the Ninth Circuit. Robertson appealed, but tragically passed away from a stroke while still on parole just a month before the Supreme Court issued its final ruling in the case.
The good news is that the Court did vacate the judgment against Robertson, did substitute his widow Carri Robertson as petitioner in his stead, and did remand the case to the Ninth Circuit for consideration of the question whether the case is moot.
The bad news is that the Court (1) did not issue a recorded vote, (2) did not address larger issues raised by petitioners, including whether this small ditch and ponds should be subject to Section 404 permitting, and (3) did not even provide full assurance that the $130,000 fine against the Robertsons was being voided.
As a result, Robertson’s attorneys have asked the government whether they agree that his convictions and the restitution award should be abated. To date, the government has not responded. There remains the possibility that the government will attempt to keep the money already collected and even try to collect the other $128,000 from Robertson’s estate. Depending on how the Ninth Circuit handles the matter on remand, the case could be brought back to the Supreme Court to review the underlying convictions and associated Clean Water Act issues.
As counsel of record Anthony L. Francois of Pacific Legal Foundation explained, it is common practice that when a criminal defendant dies while his case is on appeal, the appellate court abates the conviction and orders the trial court to dismiss the indictment. So it was not surprising that the Supreme Court issued a “Grand, Vacate, and Remand” summary disposition. But it was disappointing that the Court did not address any of the legal issues raised by the Robertsons.
The Ninth Circuit, Francois explained, should act to abate any further obligation by Robertson’s estate or his widow to pay restitution, which would prevent the government from trying to collect the remaining $128,000. However, under Ninth Circuit law, the estate would not be entitled to reimbursement of the $2,000 or so that had been taken out of his social security checks and paid on the restitution award.
The Pacific Legal Foundation, together with Judicial Watch and the Allied Educational Foundation (AEF), had asked the Supreme Court to review the Ninth Circuit ruling that had upheld Robertson’s conviction on grounds that the decision “affirmed illegal agency actions in prosecuting Joseph Robertson based on a misreading of federal law.”
The Court, petitioners added, “should take this opportunity to correct the confusion in overbroad interpretations of the Clean Water Act, which have led to unjust prosecutions and federal intrusions into both state authority and individual liberty.”
Judicial Watch asserted in its filing that the ditches the Robertsons dug “sat on what a federal agency defines as wetlands and were situated on or near a small downhill water flow of about three garden hoses in volume.” Their attorneys noted that Robertson was not engaged in manufacturing or any other industrial activity that would release chemicals or waste into the water, but that “under the Clean Water Act even turning the soil with a shovel can be considered to be releasing a ‘pollutant’ into water.”
Judicial Watch and AEF further argued that the issue was larger than Robertson’s personal plight – that it also involved the separation of powers among Congress, the Executive Branch, and the Supreme Court, which they added has itself introduced confusion into the issues of “adjacent wetlands,” “point source,” and “navigable waters.” The Robertson case, and others like it, belong, said petitioners, with state governments, not bureaucratic Washington, DC.
According to the brief, Congress has been all too willing to forego its Constitutional duty by deferring to Executive Department agencies:
It was not foreseen that the judiciary could eventually aid and abet the complete sacrificing of power by one of those two branches, effectively leaving a one-branch government where the founders intended three. When the Court goes too far in reading statutes as broadly assigning sweeping interpretive power to agencies, this allows Congress to give up power altogether and to stop the necessary work of revising and repealing statutes. Congress has proven itself either willing to give up those powers or unable to stop itself from doing so, preferring to ask the executive branch to reinterpret or reimagine statutes in ever more creative ways while sparing members of Congress the pain of responsibility for national policy. The Court should not countenance this upending of the constitutional order.
Specifically, the Court did not address any of the three major issues raised in Pacific Legal Foundation’s petition for writ of certiorari:
- Is the Clean Water Act term “navigable waters” void for its vagueness, as some justices have suggested?
- Should the Court revisit its fractured decision in the Rapanos case to clearly and authoritatively interpret “navigable waters” under the Clean Water Act?
- Whether a defendant who is retried and convicted for an offense after a hung jury may appeal, after final judgment, the erroneous denial of his motion for judgment of acquittal during the first trial (given that the Ninth Circuit insisted that appellate courts may not review such denials)?
Despite the Court’s avoidance of these larger issues, Judicial Watch President Tom Fitton announced that the April 15 action to vacate Robertson’s conviction was “a victory against an overreaching government bureaucracy.” Fitton added that “the government should not be allowed to regulate every drop of water in America, and the Supreme Court was right to brush back the radical bureaucrats.”
Francois noted that there are several other Section 404 cases working their way through the federal courts. In an Idaho case, a district court ruled in favor of the EPA that a vacant lot in a built-out subdivision is really a federally protected wetland. That case first will go to the Ninth Circuit Court, whose record of upholding federal agency actions is well known.
In another California case, the U.S. Army is prosecuting a civil case against Jack LaPlant for farming without a Clean Water Act permit, despite the fact that the Act and its implementing regulations state that no permit is needed for normal farming practices.
The incompetence, corruption and madness of the previous administration is still lingering ..
EPA Still Telling Americans to Brace for Climate Change Impacts
By Eric Worrall
Since defective climate science projections produced by federal agencies still stand uncorrected, the EPA continues to use those defective climate science projections to create a cascade of defective recommendations.
New EPA document tells communities to brace for climate change impacts
The Environmental Protection Agency published a 150-page document this past week with a straightforward message for coping with the fallout from natural disasters across the country: Start planning for the fact that climate change is going to make these catastrophes worse.
The language, included in guidance on how to address the debris left in the wake of floods, hurricanes and wildfires, is at odds with the rhetoric of the EPA’s own leader, Andrew Wheeler. Just last month, Wheeler said in an interview with CBS that “most of the threats from climate change are 50 to 75 years out.”
The divergence between Wheeler and his own agency offers the latest example of the often contradictory way that federal climate policy has evolved under President Trump. As the White House has sought to minimize or ignore climate science, government experts have continued to sound the alarm.
From the new EPA document;
Cleaning up this debris can be time-consuming and costly, extending the recovery from the disaster. According to the Federal Emergency Management Agency (FEMA), Hurricane Katrina, one of the most catastrophic natural disasters in U.S. history, resulted in more than 99 million cubic yards of debris, totaling greater than $3.7 billion in debris removal costs alone (https://www.fema.gov/news-release/2006/08/22/numbers-one-year-later). The National Oceanic and Atmospheric Administration (NOAA) estimates that from 1980-2017, the U.S. has experienced 219 natural disasters that resulted in at least $1 billion in damages per event, costing the U.S. more than $1.5 trillion. Ten of these disasters occurred in 2015; fifteen of these disasters occurred in 2016. In 2017, sixteen of these disasters occurred, resulting in the most expensive year on record for disasters, with $306.2 billion in cumulative damages. This total replaces the previous annual record cost of $214.8 billion (adjusted for inflation), which was established in 2005 due to the impacts of Hurricanes Dennis, Katrina, Rita and Wilma. (NOAA National Centers for Environmental Information (NCEI) U.S. Billion-Dollar Weather and Climate Disasters (2018): https://www.ncdc.noaa.gov/billions/.) According to the 2014 National Climate Assessment, which is a detailed report on climate change impacts on the U.S., climate change is expected to increase the frequency and intensity of some natural disasters(http://s3.amazonaws.com/nca2014/low/NCA3_Climate_Change_Impacts_in_the_United%20States_LowRes.pdf?download=1). The amount of debris generated by natural disasters, and the costs to manage it, will likely increase as a result.
Communities at risk of significant damage from a natural disaster.
- Communities at increased risk from natural disasters due to climate change.
- Communities currently without an existing or comprehensive debris management plan.
- Communities with emergency response plans that overlook disaster debris cleanup or
consider only a limited number of debris management options.
- Communities in the beginning stages of the debris management planning process.
- Communities with existing debris management plans that have not been updated with
new information, such as reductions in existing disposal capacity or innovative reuse or recycling opportunities.
Planners should focus on preparing for those disasters that are likely to happen in their communities. However, planners should not rely solely on historical information to determine the risks to their communities because the past is not a reliable predictor of future conditions under a changing climate. Recorded changes in temperature, precipitation, and wind patterns, for example, are causing extreme weather events that are creating new risks to communities and sites. More frequent and intense storms, flooding, storm surges, droughts, and wildfires— and combinations of events—may generate larger amounts of debris. Planners should also consider potential new or exacerbated risks to their communities after a disaster occurs. For example, heavy rainfall in an area devastated by wildfires can increase the possibility of massive mudslides due to destroyed vegetation on slopes. Examples of the types of debris that may be generated from natural disasters include vegetative debris (e.g., brush and trees), animal carcasses, construction and demolition (C&D) debris, orphaned tanks (i.e., abandoned tanks with no known or financially viable owner), marine or waterway debris, sediment, vehicles, white goods (i.e., household appliances, such as stoves, refrigerators, washers/dryers, air conditioner units), and electronics waste (e.g., computer equipment, cell phones).
FLOODS occur when excess water submerges land, such as from prolonged heavy rains or changes in the environment (e.g., land development) around streams, rivers, and coastal areas that reduce the ability of the ground to absorb water. Floods can occur in coastal and inland areas, making them the most common natural disaster in the U.S. Climate change may intensify flooding across the U.S., even in areas where total precipitation is projected to decline (http://nca2014.globalchange.gov/report/sectors/water). The FEMA Flood Map Service Center provides tools to understand an area’s flood risk (https://msc.fema.gov/portal/). FEMA is also working with federal, state, local, and tribal partners to identify flood risk and help reduce that risk using Risk Mapping, Assessment and Planning (Risk MAP) (https://www.fema.gov/risk-mapping-assessment-and-planning-risk-map). Additionally, NOAA’s Office of Water Prediction collaboratively researches, develops, and delivers state-of-the-science national hydrologic analyses, forecast information, data, decision-support services, and guidance to support and inform essential emergency services and water management decisions (http://water.noaa.gov/ and http://water.weather.gov/ahps/).
HURRICANES are severe tropical storms that form in the ocean and can make landfall along coastal communities in the U.S., bringing with them winds of at least 74 miles per hour, heavy rains, and large waves that can damage trees, buildings, and infrastructure. Hurricane-associated storm intensity, frequency, and duration have substantially increased since the 1980s and are projected to continue increasing as the climate warms (http://nca2014.globalchange.gov/report /our-changing-climate/changes-hurricanes). NOAA maintains the National Hurricane Center (http://www.nhc.noaa.gov/) and Central Pacific Hurricane Center (http://www.prh.noaa.gov/cphc/) to provide forecasts and warnings for tropical cyclones in the Atlantic Ocean, Caribbean Sea, Gulf of Mexico, and Eastern and Central Pacific Ocean, including some of the resulting hazards, such as storm surge.
WINTER STORMS are events that include large amounts of snow, sleet, or freezing rain. Areas with below-freezing temperatures are at risk of winter storms. Since the 1950s, winter storms have become more frequent and intense and have shifted northward over the U.S. (http://nca2014.globalchange.gov/report/our-changing-climate/changes-storms).
I’m not sure my quotes fully capture how riddled with climate references this useless EPA document is – well worth a read if you have a strong stomach.
Correcting projections and a rollback of EPA’s Clean Water Act would stem the inflow of new cases to the court system.