Tag: wetlands

Elevated CO2 to the Salt Marsh Rescue!

Coastal marshes are valuable ecosystems that provide important nutrients to coastal waters that help sustain local food webs. They are also increasingly recognized as valuable carbon sinks, sequestering significant quantities of carbon both above and below ground. In recent years, however, concerns have been expressed that these ecosystems are in danger of collapsing in response to rising sea levels that are projected to occur as a consequence of CO2-induced global warming. If such fears are correct, melting ice will increase the rate of sea level rise beyond which these ecosystems can keep up, essentially dooming them to a submerged death, which would have substantial repercussions on surrounding communities.

But how likely is it that this gloomy scenario will occur?

Investigating this very topic, the three-member research team of Ratliff et al. (2015) used a one-dimensional ecomorphodynamic model to “assess the direct impacts of elevated CO2 on marsh morphology, relating to ongoing and emerging environmental change.” According to the authors, previous works have revealed large increases in marsh plant biomass productivity in response to elevated concentrations of atmospheric CO2, yet “direct CO2 effects on vegetation and marsh accretion (as opposed to its indirect effects, e.g., via the increase in temperature) have not yet been incorporated into marsh models. As a result, they note the relative importance of CO2 effects on marsh dynamics “remains unknown” … until now, that is.

EPA Actions Should Be Subject to Judicial Review

Michael and Chantelle Sackett bought some Idaho land and began placing gravel fill on the site to prepare for laying a foundation for their dream home. Then they got something from the EPA: a “Compliance Order,” declaring that they were in violation of the Clean Water Act, because their land had been deemed a “wetland” subject to federal jurisdiction.

By beginning construction without a federal permit, the Sacketts were breaking the law and exposing themselves to civil and possibly criminal penalties, according to the Order. The Order instructed them to stop their construction and restore the property to its “original state” – it even told them what type of shrubbery to plant on the site, and exactly where to plant it. If they failed to comply with the order, they were subject to $37,500 fines per day.

The Sacketts were, understandably, shocked: they had no reason to think their property was a wetland; their neighbors had been allowed to build homes, and there was no indication in their title documents that the land was subject to federal control. So they asked for a hearing – and that was when they learned that the Compliance Order process does not entitle them to a hearing. They must either comply with the Order immediately to avoid the fines, or play chicken with the EPA – waiting until the EPA decides to file an “enforcement action.” At that time, they would be allowed to present their arguments that the land is not actually a “wetland.” But of course, by that time, the fines would have accumulated to hundreds of thousands or millions of dollars.

Worse, these Compliance Orders are issued by a single EPA bureaucrat, on the basis of “any evidence.” That’s the language of the statute itself – and federal courts have interpreted “any evidence” to mean even an anonymous phone call or a newspaper story.

And a Compliance Order doesn’t just demand that you obey EPA’s orders or face fines – ignoring a Compliance Order is a separately punishable offense against federal law, aside from the liability for any environmental damage. In other words, you can face penalties for violating the Clean Water Act and also for ignoring a Compliance Order. Worse still, ignoring a Compliance Order can serve as the basis of a finding of “wilfulness,” and thus the basis of criminal charges.

Pacific Legal Foundation represents the Sacketts and argues that they should have their day in court – either under federal statutes like the Administrative Procedure Act or under the Due Process Clause – without having to face the possibility of devastating penalties.  PLF lawyer Damien Schiff argued the case today before the Supreme Court; while the justices were active in probing the weaknesses of both sides, the government’s lawyer didn’t do the EPA any favors.  So today may have ended being a very good day for the Sacketts, even if the New York Times editorial page took the alarmist stance that allowing them to seek pre-enforcement judicial review would be a ”big victory to corporations and developers who want to evade the requirements of the Clean Water Act.”

The case is Sackett v. EPA; read the argument transcript here and the briefs here.

This blogpost was coauthored by adjunct scholar Timothy Sandefur, who is a principal attorney at PLF and wrote about the case in Regulation magazine.