You could search the law books all night and not find a case with more conflicting aspects than the case of John Pozsgai. Let me kick it around.
Pozsgai is a 60-year-old Hungarian emigre who settled in Morrisville, Pa. There he established a truck repair service in a small garage behind his house. In 1986 he decided to build a new and larger garage on a 14-acre tract across the street. This was the problem: A tiny stream, or drainage ditch, trickled along the east border of the property.Three different engineering firms warned Pozsgai that because the land was legally "wetlands," he could not proceed without a permit from the Corps of Engineers. He went ahead anyhow. An investigator from the Corps repeatedly told him the same thing. Finally, on Aug. 24, 1988, a fired-up federal judge flatly ordered him to stop the activity at once. On Aug. 26 he dumped another 25 truckloads of dirt on the site.
That did it. The court found this bullheaded Hungarian guilty of contempt and fined him $5,000. Subsequently a jury convicted him of 40 counts of unpermitted discharge of pollutants into waters of the United States. The judge gave him three years in prison and fined him $200,000. It was a terribly tough sentence, but perhaps he had invited it.
That was the criminal case. The Corps of Engineers, rubbing it in, then brought a civil enforcement action to compel Pozsgai to restore the land to its former elevation. The Corps won the case. The U.S. Court of Appeals for the 3rd Circuit affirmed. In November, Pozsgai asked the U.S. Supreme Court to review the whole business. The court will act on his petition in the next few weeks.
I hope the high court will accept the case. Eight years have passed since the court last considered the regulations that implement the Clean Water Act. That case, known as Riverside Bayview, involved a proposed development near the shores of Lake St. Clair in Macomb County, Mich. A unanimous court, speaking through Justice Byron White, sweepingly upheld the authority of the Corps of Engineers to control "wetlands" as the Corps defines them.
Since that 1985 decision, five new justices have come aboard, and Justice White has departed. The Pozsgai case presents mixed questions of statutory and constitutional law that cry out for a fresh look.
It is useful to keep in mind that the Clean Water Act rests upon the power delegated to Congress to regulate commerce among the states. Without that foundation, enforcement of the implementing regulations in specific cases becomes a very iffy proposition.
The act itself, with its several amendments, is a model of legislative ambiguity. The accompanying regulations might have been drafted by Humpty Dumpty, to whom words meant anything he chose them to mean. Thus water is defined as land, and land is defined as water.
The government contends that the trickling stream is a tributary of the distant Pennsylvania Canal, which was last used in interstate commerce a hundred years ago. Counsel for Pozsgai, in an acerbic line, remark that the Commerce Clause "may be elastic, but it is not Silly Putty."
To put the matter mildly, the legal theory advanced in Pozsgai's case is deeply troubling. Has the Corps of Engineers abused its delegated power to define "wetlands"? I believe it has. But Congress has refused to exercise its power to override the regulations.
I believe devoutly in conserving true wetlands, and I don't question the congressional power to regulate waters that truly are "waters of the United States." But everything in public life turns upon power, and experience teaches us that power can be abused. The Pozsgai case strikes me as patently absurd.