FEDERAL LAWS CAN be valuable tools for protecting the environment. But as a result, environmental laws also limit the ability of property owners to protect public resources.
To take one prominent example, since Congress passed the Clean Water Act in 1972, industrial pollution and municipal sewage in our navigable rivers, lakes, and oceans has been dramatically reduced.
Yet federal agency bureaucrats have routinely abused the Clean Water Act, enforcing its provisions beyond what’s necessary to protect public resources, to micromanage or even prohibit ordinary activities like farming, home building, and road maintenance. The law can even halt environmental restoration on private property containing no navigable waters at all.
How the Constitution protects property rights
Our Constitution protects property of all kinds so that individuals can provide for themselves and their families, contribute productively to society in their communities and the marketplace, and enjoy personal security and privacy.
The Constitution protects private property rights through the Fourth and Fifth Amendment prohibitions on unreasonable searches and seizures, deprivations of property without due process, government takings of property for other-than-public purposes, and uncompensated takings for public purposes.
The Eighth Amendment forbids government from impos-ing excessive fines, and it also protects property rights. For example, the Environmental Protection Agency ordered Mike and Chantell Sackett of Idaho to halt work on their home, despite their lot being surrounded by previously built homes. The Sacketts were threatened with daily fines of up to $75,000 per day if they did not comply with the EPA’s order to restore their home site.
The Constitution’s separation of powers also protects individual rights in property. Separation of powers means distributing the three government roles of lawmaking, law enforcement, and the adjudication of legal disputes into separate and independent branches that check and balance each other. Our Constitution reserves lawmaking to the elected members of Congress, who are accountable to the electorate for the rules they make through regular elections.


However, these constitutional protections of property rights are breaking down, because regulatory agencies have assumed all three powers: creating new regulations, enforcing them, and adjudicating disputes over their enforcement. Here’s one way this breakdown occurs in practice:
Lawmaking: The Clean Water Act regulates “navigable waters,” but agency bureaucrats have issued regulations (taking over the lawmaking power from Congress) that have expanded the Act’s coverage—and bureaucrats’ authority— over vast areas, which now include farmland, one-foot-wide channels in forest clearings, and dry-sand gullies. For the Sacketts, EPA regulators decided that anything in the country that had ever been on a map as a peat bog was a federally protected wetland. The EPA follows this rule even though it is not printed in regulations.
Enforcement: Congress gives enforcement agencies wide latitude to enforce federal laws. This includes the authority to order you to stop using your property, to order you to restore or modify your property, to impose significant fines, to sue you for monetary penalties, and even to criminally prosecute and imprison you.
CLEAN WATER ACT overreach poses grave threats to private property rights. Consider a few examples from PLF clients:
Federal officials sued John Duarte, a California nursery owner, under the Clean Water Act for farming his land, despite the Act’s protections for normal farming activities and the fact that the shallow seasonal ponds where he had planted wheat are not navigable. The Justice Department sought more than $40 million from John Duarte, leveraging him into a $1.1 million settlement to protect his family and employees.
The EPA accused Andy Johnson of Wyoming of polluting a small creek on his property. What he actually did was build a stock pond that was beneficial for the environment with the necessary state permits and within a clear exemption of the Clean Water Act. With PLF’s help, Andy Johnson convinced the EPA to back off its demand for fines and leave the pond in place.
John and Frankie Smith bought a retirement home in the New Mexico hills and cleaned up garbage, including old refrigerators the prior owners had left in a sandy arroyo on their land. The Army Corps of Engineers said cleaning garbage from a dry-sand gulley was polluting navigable waters and threatened the Smiths with steep fines. With PLF’s help, the Smiths sued the Army Corps, which then conceded that their dry-sand gully is not “navigable waters.
”Navy veteran Joe Robertson was imprisoned for 18 months for digging firefighting ponds in a so-called navigable water that was a foot wide and a foot deep. His case is pending before the U.S. Supreme Court.

In the case of the Sacketts, EPA staff ordered the couple to cease work on their home and decided that their home site could not be used at all, while denying the Sacketts a chance to challenge them. EPA staff decided the Sacketts’ home site is a federally protected peat bog without ever sharing their evidence with the Sacketts. Without this evidence, the Sacketts never had a fair chance to convince the EPA that their land is not a peat bog.
Court Review: When agency officials accuse a landowner of breaking the law, the accused is entitled to have independent judges and juries decide the facts and even-handedly apply the law before agencies can deprive them of the use or possession of their property. Fair and impartial judicial processes serve as a necessary bulwark for property rights against arbitrary, privately motivated, or corrupt law enforcement.
“Agency bureaucrats should not unilaterally grant themselves the unchecked power to make and adjudicate the laws they enforce.”
But EPA staff don’t have to take you to court to prove you violated the law. They can investigate you, charge you, and judge you themselves, threatening you with tens of thousands in daily fines if you don’t accept their role as prosecutor-judge-and-jury. The EPA argued that the Sacketts could not even challenge their compliance order in federal court. As PLF clients, the Sacketts ultimately convinced the U.S. Supreme Court that they had the right to an independent judicial review of EPA actions under the Clean Water Act.
Environmental laws and regulations have helped to reduce pollution, clean up waterways, protect endangered species and other natural resources, and improve public health; they can and often do protect the environment without violating the Constitution. But those same laws and regulations can’t override constitutional protections for individual liberty, including the proper separation of powers. Agency bureaucrats should not unilaterally grant themselves the unchecked power to make and adjudicate the laws they enforce. Rather, their authority must be limited to that which Congress provides them and exercised in the manner prescribed by Congress. Without this constitutional separation, the temptations and opportunities to misuse law enforcement power to pursue personal agendas, corrupt schemes, and controversial policies (i.e., those that lack sufficient public support for Congress to adopt them) are far too great.