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Supreme Court Ruling Lets Property Owners Fight the EPA

Today the United States Supreme Court issued an opinion in Sackett v. Environmental Protection Agency, a case brought by an Idaho couple represented by our friends at the Pacific Legal Foundation.  It is a great victory for landowners facing the wrath of the EPA.

The Sacketts own a 2/3 acre lot, just north of a lake but not actually on the water.  They set out to build a house on this lot, and laid the foundation by filling in part of the lot with dirt and rock.  Months later the EPA sent them a compliance order, concluding that their property contains wetlands “adjacent to Priest Lake” and that the fill-in constituted the “‘discharge of pollutants’” into the lake.  The order demanded that they restore the site (following all EPA guidelines for doing so, of course) and provide all documentation relating to the fill-in and clean-up to EPA bureaucrats.  Failure to comply would result in fines of up to $75,000 per day. (If the fine were assessed today it would be over $100,000,000.)

Today’s Sackett ruling hinges on what happened afterward: the Sacketts do not believe that their property is actually a wetland, and wanted to challenge the EPA’s decision.  The EPA denied them a hearing on the matter, so the Sacketts sued in federal court.  But the lower courts held that the Clean Water Act “‘preclude[s] pre-enforcement judicial review of compliance orders,’” and ruled that this required the Sacketts to go through the EPA’s administrative processes—that is, acknowledge their property is a wetland—before coming to court to challenge whether or not their land is actually wetland!

Justice Scalia, writing for a unanimous Court (there are two concurring opinions), overturns these lower court rulings.  He applies the Administrative Procedure Act to the case and rules that the EPA’s compliance order was, in fact, “final agency action” and thus subject to challenge in court.  Scalia thoroughly debunks the government’s arguments, which amount to the EPA being the highest court under the Clean Water Act.  If the EPA had prevailed, a landowner could still get his day in court, assuming he had any money left to pay his attorneys after years of dealing with the friendly folks at the EPA.

Scalia’s summary is apt:

The [Administrative Procedure Act]’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.

Far more searing is Justice Alito’s concurrence:

Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.


The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune. (Emphasis added.)

As Justice Alito notes, this is, sadly, only the beginning for the Sacketts.  They can now go to court and challenge the EPA’s determination that their lot is a wetland.  Given the unlimited budget the government’s lawyers wield, not to mention all the time they have on their hands, coming off this loss they will probably put even more creative zest into fighting that case than they did in this one.  But at least now the EPA doesn’t control the whole process at the outset.

It’s worth noting this opinion was decided unanimously.  I put liberty far above consensus, but it’s always refreshing to see freedom unanimously affirmed by the Supreme Court (which still happens from time to time).  Perhaps scorekeeping is inevitable because I’m burdened with a law degree and am part of the legal racket, but for this case the score was 9-0.  Rejoice: the feds got shut out. 

The Sacketts and PacLegal have a long way to go in this case, but today it’s fine to pause and reflect on a great victory for themselves and the next families or businesses that will face the wrath of the EPA, but now have a way to fight back. 

The slip opinion is available here.

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Sunday, 25 February 2018

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