EPA loses against landowners in a Supreme Court decision

Apr 6, 2012

A recent Supreme Court ruling relating to Clean Water Act (CWA) violations was a huge victory for an Idaho couple, but it is also a potential bonus for all private landowners. On March 21, Justice Antonin Scalia delivered the court’s 9-0 ruling that landowners are entitled to a hearing, challenging government’s threats of fines relating to CWA violations.

The Idaho couple, Mike and Chantell Sackett, were facing fines of up to $75,000 a day if they didn’t restore their 0.63-acre parcel that the Environmental Protection Agency (EPA) claimed was a wetland.

While the Supreme Court did not rule on whether or not they had violated clean water regulations, it has opened the door for the Sacketts to challenge the order. The decision does not end the EPA “wetlands” nightmare for the Sacketts, but it does prevent EPA from continuing to tack on daily fines without allowing them “due process.”

The couple’s supporters had compared this to a “David vs. Goliath” fight against EPA. “We’re here to stand up for the property rights and the constitutional rights of all Americans,” Mike Sackett told CNN in January, when the case was argued at the high court. “We felt blindsided by the EPA, and we remain determined to fight.”

When the Sacketts, who had reason to believe there were no wetlands on the property, sought to challenge an EPA compliance order that was keeping them from building their new home, they were told by EPA officials, and later by a federal judge and the U.S. 9th Circuit Court of Appeals, that they had no right to a hearing. The 9th Circuit held that the couple would first have to go through the EPA’s years-long wetlands permit process, which would end up costing the property owners more than the land was worth.

Scalia stated, “[T]here is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.” In the closing paragraph of his 10-page opinion, Scalia writes: Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution. Compliance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review. The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.

In a concurring opinion, Justice Samuel A. Alito Jr. faulted Congress and EPA for not clarifying the definition of a wetland.

“Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands,” Alito said. “Allowing aggrieved property owners to sue under the Administrative Procedure Act (APA) is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

The couple was represented by the Pacific Legal Foundation (PLF), a property rights group. PLF Principal Attorney Damien M. Schiff argued the Sacketts’ case at the Supreme Court on Jan. 9. He issued this statement, after the court’s ruling in favor of the Sacketts was announced:

“EPA is not above the law,” said Schiff. “That’s the bottom line with today’s ruling.

This is a great day for Mike and Chantell Sackett, because it confirms that EPA can’t deny them access to justice. EPA can’t repeal the Sacketts’ fundamental right to their day in court. And for that reason, it is a great day for all Americans, for all property owners, and for the rule of law. The justices have made it clear that EPA bureaucrats are answerable to the law and the courts just like the rest of us. EPA can’t try to micromanage people and their property—it can’t order property owners to dance like marionettes— while denying them any meaningful right to appeal to the courts. It can’t threaten property owners with financial ruin and not have to justify its threats to a judge. And it can’t issue lazy, driveby ‘wetlands’ edicts about private property. It will have to put in some honest work and use credible science, because the regulators must be able to justify their wetlands orders in a court of law."

“We are very thankful to the Supreme Court for affirming that we have rights, and that the EPA is not a law unto itself and that the EPA is not beyond the control of the courts and the Constitution,” said Mike Sackett.

EPA said it was reviewing the decision. However, the Oklahoma Farm Report said that just days after the Supreme Court decision, EPA Administrator Lisa Jackson told Oklahoma Sen. Jim Inhofe in a committee hearing that EPA would abide with that ruling—but would not stop moving forward with a public statement of guidance of how much jurisdiction they have under the CWA.

Bob Stallman, president of the American Farm Bureau Federation, said they were pleased with the unanimous decision.

“Today’s decision vindicates the rights of landowners like the Sacketts to challenge EPA compliance orders that improperly assert jurisdiction over their land. The decision gives landowners like the Sacketts their day in court, overriding the position taken by EPA and many prior courts that have denied them that right.”

But Stallman also agrees with Alito that more clarification needs to be done.

“While allowing landowners to sue is a start, Congress needs to clarify the reach of the Clean Water Act,” he said.

“Farm Bureau is optimistic that today’s decision will help curtail EPA’s efforts to illegally expand its regulatory jurisdiction over farming and other land-based activities. At the very least, landowners have another tool to hold EPA accountable,” he added. — Traci Eatherton, WLJ Editor