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Environmental Protection Agency Issues

Kassouni Law attorneys are versed on a wide variety of Constitutional property law matters, including those that fall under the jurisdiciton of the Environmental Protection Agency. The practice defends clients who have had their property rights infringed upon.

The Environmental Protection Agency (EPA) is a massive federal bureaucracy with 18,000 employees. It was created in 1970 in order to adopt and enforce myriad environmental regulations, and has the power to impose substantial fines and penalties. Its jurisdiction extends to water, air, land, and endangered species.

Like most large federal and state bureaucracies, the EPA has sought to expand its regulatory authority, and has done so with the aid of very broadly worded federal statutes, and, more importantly, with the aid of federal court rulings granting it virtually unlimited enforcement power. It is also aided by thousands of staff engineers and scientists committed to the EPA’s agenda.

One of the most difficult challenges facing private property owners with EPA related disputes is the extreme deference afforded these engineers and scientists by reviewing courts. Under the “substantial evidence” rule, courts will typically refuse to weigh competing scientific evidence, and rubber stamp the EPA’s conclusions. Little if any weight is afforded to the economic impact of the EPA’s regulations and environmental agenda.

Over the years, the tension between the EPA and private property rights has escalated. The EPA will exert its authority over families who merely wish to build a home. Many of the EPA’s scientific support for endangered species listings has been shaky at best. These listings nevertheless remain, as they afford the EPA great power to restrict and in many cases outright ban economic use of property.

Another mechanism for EPA control of private property is its use of the Clean Water Act to restrict productive economic use, with the aid of the Army corps of Engineers. For example, the EPA has for years sought to expand its regulatory authority over wetlands. One typically thinks of a wetland as tract of land that is connected to navigable water, which attracts native wildlife during certain seasons of the year. However, the EPA has for years sought to expand this view of wetland to include virtually any tract of land, whether or not it is truly connected to navigable water.

There are also costly and burdensome procedural hurdles facing property owners who seek to challenge EPA regulatory enforcement power. The EPA can issue a violation based solely on unsubstantiated “information” and place the burden on the property owner to apply for an EPA permit, at a cost of tens of thousands of dollars. The property owner has no legal right to have the unsubstantiated violation litigated in court unless the permit has first been applied for, and then denied by the EPA. A case is currently pending in the United States Supreme Court (Sackett v. EPA) which addresses this nightmare procedural bar to quick review of EPA violation notices. If you own property which you believe may be subject to EPA jurisdiction, or if you have been issued an EPA violation notice, please call the Sacramento and Los Angeles offices of Kassouni Law at 877-770-7379. We will be happy to assist you in assessing your rights and remedies and help you form a comprehensive and effective plan of action to obtain positive results.