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.