There was a time, way back in the eighteenth century, and as recently as the nineteenth century in the United States, that a person who owned land possessed legal title (in so-called “fee simple,” the normal way people own land unless they lease it) to it from the “center of the earth to the zenith of the universe” and could use it as he pleased provided he didn’t injure others or interfere with their use.  Gradually those use rights have been eroded in America by Congress, state and local governments.  But the capstone to this increasing interference looks to be the Environmental Protection Agency’s new water regulations, set to take effect soon—unless the Supreme Court stops it in the case of American Farm Bureau Federation v. EPA.  John Block in the Washington Times (http://www.washingtontimes.com/news/2016/feb/18/john-block-a-scheme-to-say-how-land-is-used/) has written about the case and the regulations, which are labeled the Waters of the United States (WOTUS) regulations.  In my previous reading of and about these regulations, I have found that they will allow the EPA to claim jurisdiction over any and every “body” of water in the nation, no matter how small or large, and, importantly, no matter whether it is a tributary or simply a stagnant pool of water with no connection to any navigable waterway at all.  Literally, your runoff water in a back yard is subject to these regulations.  That means the EPA, should it decide to send out one of its oh-so-compassionate inspectors, can order you to do something about the runoff (no matter how small it is and no matter that is doesn’t have any effect on other property owners) or be fined, and if you do, but the EPA doesn’t like it, you can be fined anyway.  That sounds like a pretty good deal, doesn’t it?

What do I think the Court will do?  The Third Circuit had allowed the regulatory scheme to proceed on appeal.  With Antonin Scalia not on the court, we could see a tie vote, or even a refusal to hear the case on appeal.  Either way, the Circuit decision would stand and the EPA would have a free hand.

So how does this scheme work?  John  Block summarizes it:

“In an executive order signed weeks after taking office. President Obama instructed the environmental agency to “make full use of its powers” to lower the levels of phosphorus, nitrogen, and sediment in rainwater runoff, groundwater movement, and tributaries that reach the East Coast’s Chesapeake Bay. He added that this was to be done in a manner that “can be replicated” nationally. The goal was an EPA blueprint for watersheds covering the entire American landmass — from East Coast to West, including Alaska and Hawaii. But this “blueprint” wasn’t so much about improving the environment as grabbing more power to Washington.  EPA divided the 64,000-square-mile Chesapeake watershed (which covers the four states bordering the Chesapeake Bay as well as the District of Columbia and parts of New York and West Virginia) into thousands of sub-sections and categories. In each subsection, the agency-imposed limits on nutrient and sediment run off for several specific uses of land (agriculture, forests, urban runoff, and others). States were barred from adjusting mandated levels in one sub-section in light of greater progress, or greater difficulty, in another. EPA was rigid about its prescribed methods, too — requiring expensive buffer zones around fields and fencing off streams, for example. In effect, the regulation gives EPA the power to determine exactly how landowners can — and cannot — use their land.”

Very interesting.  Property rights?  What property rights?  Reasonable regulation that takes into account the cost to landowners?  Not at all.  Once again, the president and one of his most abusive agencies have chosen to oppress property owners across the nation, and for little more reason than that they can (perhaps).

Though I shouldn’t have to I feel the need to say again that I am not one who favors no environmental protection laws and regulations at all.  I do however want two things: (1) reasonable regulations that do  not potentially impoverish and treat unjustly ordinary people; and (2) regulatory arrangements that work more like markets than “top down,” command and control” (and arbitrary) bureaucracy.  If a problem needs to be solved and it is a genuine problem, find a minimally intrusive solution.  This scheme looks like a solution in search of a problem—and one implemented in the usual big-government way.

Let’s hope the Supreme Court hears the case and puts a stop to the EPA’s shenanigans.