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After the oral argument Sackett v. EPA presaged where the
decision was coming down,
I raised the question whether EPA would try to persuade
district courts that nothing really had changed. On occasion, I
call them correctly. According to E&E News, Mark Pollins,
director of EPA's Water Enforcement Division, in commenting on
Sackett, said
What's available after
Sackett? Pretty much everything that was available before
Sackett. Internally, it's same old, same old.
Tone deaf doesn't quite cover this one. If Mr. Pollins's
remarks are representative, and my experience tells me that they
are, EPA just doesn't get it. For one thing, there is a certain
disingenuousness to EPA fighting so hard in Sackett, and
then, after losing, saying "never mind; it doesn't
matter."
The irony is that EPA is right at a certain level, but
completely wrong where it matters. Following Sackett, EPA
does have fundamentally the same enforcement authority it had
before. What's supposed to be different is how
EPA utilizes that authority. The Supreme Court
said, about as clearly as it could have done, that the type of
coercion exercised by EPA prior to Sackett was
inappropriate. Indeed, there may be a majority on the court
prepared to conclude that that level of coercion isn't just
wrong; it's unconstitutional.
Sometimes, I fear that EPA is never going to learn.
Unfortunately, EPA's failure harms everyone. It harms the
regulated community. It harms respect for the law. Ultimately, it
harms the environment, because it undermines respect for EPA.
Sigh.
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