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John Rapanos and the Kitchen Sink Theory of federal jurisdiction

John Rapanos is going to be sentenced tomorrow. The 68-year-old Michigan grandfather faces ten to sixteen months in federal prison. He also faces the prospect of over $13,000,000 in fines and other penalties, in a future proceeding.

For what crime? you may ask. Well, Mr. Rapanos was found guilty of filling a federal wetland without a permit, in violation of the Clean Water Act. Under the Act, it is illegal to discharge a pollutant into a navigable waterway without a permit—which sounds sensible until you discover that a “pollutant” is literally anything, from actual pollutants to heat, or fish...in one case, sunlight was found to be a pollutant. Even “incidental fallback” (a government term for the dirt that falls off the edge of a shovel when you scoop up some dirt with the shovel) is a pollutant. And a “navigable water” does not have to be navigable, or even potentially navigable, or even water. Water that is “hydrologically connected”—no matter how many steps removed—qualifies, as does water or land that is near a navigable waterway. Literally speaking, there is no legal reason why your kitchen sink is not covered by this law.

Getting a permit is not a simple matter. On average, permits cost over $270,000 and take more than two years each to obtain. When John Rapanos hired contractors to prepare his property for development, the Environmental Protection Agency ordered him to obtain permits before doing so. He refused. He pointed out that his land is not a wetland, and that the nearest navigable waterway is 20 miles away. Nevertheless, when he proceeded with his plans, the EPA charged him with violating the Clean Water Act. At his trial, Mr. Rapanos argued that the federal government has no authority under the commerce clause to regulate land that is far removed from any actual navigable waterway. The trial judge sympathized with Rapanos. He had just sentenced a drug dealer that same day, and was outraged by the EPA’s persecution of Rapanos. “[H]ere we have a person who comes to the United States and commits crimes of selling dope and the government asks me to put him in prison for 10 months,” the judge said. “And then we have an American citizen who buys land, pays for it with his own money, and he moves some sand from one end to the other and government wants me to give him 63 months in prison. Now, if that isn’t our system gone crazy, I don’t know what is. And I’m not going to do it.” The judge sentenced Rapanos to three years probation and a fine of $185,000. The Court of Appeals reversed, however, and ordered the trial court to send him to prison.

The Supreme Court then intervened. It had just decided a case called SWANCC, which held that the Clean Water Act cannot extend to such non-navigable waterways. The Supreme Court ordered the Court of Appeals to reconsider its decision in light of the SWANCC case. Then federal prosecutors argued a new theory. They claimed—and the Court of Appeals agreed—that Rapanos’ land is a wetland because it is “adjacent” to tributaries, and thus is “hydrologically connected” to navigable waters, so the federal government can regulate it. Just to be clear: this land is adjacent to a tributary of a tributary of a tributary of a navigable water, and is therefore a “navigable water,” which the federal government can regulate, by virtue of this connection alone.

Under this Kitchen Sink Theory of the commerce clause, this elderly landowner will serve over a year in federal prison. The Supreme Court has refused to intervene, and President Bush has refused to issue a pardon. In addition to his prison time, the EPA also wants him to give up more than 80 acres of his land, plus a $10 million fine and $3 million in “mitigation fees,” supposedly to fix the horrifying environmental catastrophe that his terrible criminal has unleashed. (Of course, he doesn’t have the money: he has been litigating two lawsuits for 12 and 11 years, respectively, bankrupting himself in the process.)

One of the sad facts about the federal environmental laws is that they are not really about the environment at all—they’re about federal land-use planning. By writing laws in the vaguest terms, and interpreting them as broadly as possible, federal bureaucrats expand their authority over virtually every piece of property in the nation. Then they require permits and fees from anyone proposing development—and as a consequence, land-use planning, which was once considered the quintessential local issue, is done by anonymous staffers in giant federal bureaucracies just barely overseen by politicians who have more important things to worry about. Forgotten in the entire enterprise is the Constitution, which only gives the Congress authority

“to regulate commerce...among the several states, and with the Indian tribes,”

not authority to regulate any matter where there is any hydrological connection to any navigable waterway. The environmental regulators’ theory of jurisdiction is simply not constitutional, yet it has converted the commerce power into a limitless authority to regulate virtually anything anywhere at any time: everything up to and including, literally, the kitchen sink. But although the Supreme Court has claimed that ours is a government of limited and enumerated powers, and tried in the SWANCC case to restore some modicum of sanity to federal environmental regulation, the Sixth Circuit Court of Appeals has ignored that attempt, and John Rapanos is paying the price.

You can read the Pacific Legal Foundation’s brief asking the Supreme Court to take his civil case here.

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