As I have said before, being a libertarian means believing in individual freedoms. These freedoms, besides those granted in the Bill of Rights, extend to the choices we make in our everyday lives: where to eat, where to shop and what to buy. However the current government, Republicans and Democrats alike, would tell you differently. They use fear, anger, and emotion to pass costly regulations all in the name of your protection. I often get asked, if not accused, of being against regulation…. that is simply not true. I do believe in regulations, just not particularly over zealous ones. Today I will highlight a case of regulations out of control that stem from out of controlled bureaucracy.
We all know about the Environmental Protection Agency (EPA) and the role they play in making sure that pollutants are not being dumped into our streams and rivers. No one questions the importance of that. When Congress passed the Clean Water and Air Act (CWA), they left several areas of regulation to be determined by the “Secretary,” who is an unelected official; much like the Affordable Care Act. Using the “to be determined power,” the “Secretary,” added wetland into the Clean Water and Air Act. Most of us assume this to mean sensitive areas like the Everglades, the Gulf Coast, or the Minnesota Boundary Waters. However, wetland is defined so vaguely that it can literally be whatever the “Secretary” wants it to be, a power granted under the regulations.
In fact, the definition of wetland has become so absurd that the Army Corps of Engineers has developed the “migratory bird theory.” This theory states that if your land is a stopping point for any migratory bird that has traveled between navigable water, then your land is now connected to the interstate navigable streams. I’m not joking. I’m sure we can all remember geese on our football practice fields in high school, driving by obvious farmland where geese had decided to rest, or similarly witnessed geese camped out on the front lawns of businesses. When combined the vague definition of wetland and the migratory bird theory threaten to place everyone’s land under the EPA.
Don’t think that will happen? Guess again! In 1987 John Pozsgai bought some property on which an illegal auto dump was located. The property was bordered by some major roads and a tire dealership. Pozsgai proceeded to clean up, his newly and legally purchased property, by removing over 7000 tires and countless rusted and broken auto parts. After digging out and removing the tires, Pozsgai covered his land with topsoil; a practice that several of us do each spring preparing the gardens in front of our homes. According to Paul Kamenar of the Washington Legal Foundation, who helped the Pozsgai’s, tells the story of what happened next;
“The EPA had enough of Pozsgai placing topsoil on his own land, so they set up secret surveillance video cameras to record some of the filling activity. Armed with this evidence and aerial photographs, the EPA had Pozsgai arrested and indicted in September 1988 for “discharging pollutants into waters of the United States.” Keep in mind that the “pollutants” consisted of earth, topsoil, sand, and clean fill. (Under the Clean Water Act, a child at the beach dumping a bucket of sand into the ocean is technically “discharging a pollutant into waters of the United States” and can be arrested for doing so without an EPA permit!) The EPA readily admits that no toxic or hazardous wastes were involved in this case.”
In the end Pozsgai was fined an amazing $202,000 (which at the time made him the worst environmental violator in the history of the U.S) and served three years in jail. To find him guilty, the Court deferred to the definition of wetland under the EPA (remember a definition vague to begin with and expanded on by an official with no congressional oversight) and the enforcement of regulations under said definition. The astonishing part about this case is that Pozsgai was practically crucified by an agency for cleaning up an illegal dump. What is even more astounding is that no one went to prison when the EPA noted 22,348 pounds of toxic TRI chemicals were released into the water in Essex, New Jersey.
The US Court of Appeals, in affirming Pozsgai’s guiltiness, violated his IV, V, VII, VIII and IX amendment rights guaranteed under the constitution. The EPA did not have a warrant to perform the several scary surveillance practices they used to catch him (even scarier now that the government has authorized drones to be used on American soil). His case was tried on more than one occasion by several different courts, amounting to double jeopardy which is expressly forbidden by the 5th Amendment. He was not tried in front of an impartial jury in the State and district where his “crime” was committed. Because he was not given a trial by jury his 7th Amendment rights were violated. The Court violated the 8th Amendment by imposing extremely unjust monetary penalties on Pozsgai for committing a crime he didn’t know he was committing, forcing him into bankruptcy. And as if that wasn’t enough already, the court violated his 9th Amendment rights by taking power that is retained by the people (the right to own property and clean it up).
I wish I could say that this is just a lone mishap and that the government never abuses its’ power. Sadly I cannot. All we have to do is look around at the IRS scandals, the NSA scandals, and the TSA to see that whenever Congress jumps on the emotional bandwagon and passes a law vague and loose in oversight, that abuses of power will occur. If you are like me, then you’re concerned. The number of cases occurring every year like Pozsgai’s is unfathomable.
I will reaffirm that I am not against federal congressional oversight of certain regulations. But I am against vague regulations with little oversight that leaves an unelected official in charge of defining and adding whatever he/she feels necessary. As always I feel that most environmental cases, not involving rivers shared by more than one state or pollution from one State’s power plants going into another State’s air, should be left to the State. The reasoning is simple. First, the Constitution only granted the central government certain powers. Second, by pure mathematics, being from a state with only 2.3 million people, my voice is a lot louder there than in a competition at the national level. If I am unhappy with companies in my state dumping their waste then I, having the power to organize, can call my state legislature, organize my community, and lead a movement for change.