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Supreme Court to EPA: “You Are Not Above the Law”

By Daniel A. Himebaugh

Five years after the Environmental Protection Agency forced them to stop building their dream home, Mike and Chantell Sackett are celebrating a major legal victory. If you don’t already know, the Sacketts are the now-famous Idaho couple who have become the new poster children for victims of EPA bullying.

In 2007, the Sacketts were blind-sided by the EPA when the agency ordered them to restore a residential lot they were preparing for a home site. The EPA, lacking any proof of violation, asserted that the Sacketts’ property is a wetland which the Sacketts had filled without a required federal permit. The agency issued a “compliance order” directing the Sacketts to remove all fill, plant new vegetation, fence the lot for three years, provide off-site mitigation, and pay a fine; or risk ruinous civil penalties (up to $75,000 a day) and possible criminal sanctions.

Holding all necessary state and local permits—and adamant that they had not filled a wetland—the Sacketts filed a lawsuit with the help of Pacific Legal Foundation attorneys, challenging the EPA’s claim of jurisdiction over their property. The EPA, for its part, brushed aside the Sacketts’ complaint, arguing that the Clean Water Act did not provide the Sacketts with an opportunity to seek judicial review of the agency’s compliance order.

The Sacketts lost their case in every court until March 2012, when the U.S. Supreme Court ruled in Sackett v. U.S. Environmental Protection Agency that the Sacketts are entitled to challenge the EPA’s assertion of jurisdiction over their property. In a unanimous opinion written by Justice Antonin Scalia, the Court held that the Clean Water Act does not preclude the Sacketts from seeking judicial review of the EPA’s compliance order. In one of the more strongly worded passages of the opinion, Scalia remarked that “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.” As a result of the Court’s opinion, the Sacketts now have the opportunity to show that their property is not a wetland under the Clean Water Act, which means they could eventually be able to build their home as they originally planned.

In a forceful concurring opinion, Justice Samuel Alito expressed his disapproval of the EPA’s overbearing administration of the Clean Water Act: “The reach of the Clean Water Act is notoriously unclear. 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….In a nation that values due process, not to mention private property, such treatment is unthinkable.”

True, the Sackett v. EPA decision does not solve every problem that builders might encounter when dealing with the EPA, but it goes a long way in the right direction. Homebuilders finally have the opportunity to challenge EPA compliance orders, an option that had heretofore been unavailable to them. And hopefully the decision will cause the EPA to base future compliance orders on more than mere suspicion, since the agency can now be held to account in federal court when it asserts wetlands jurisdiction over private property.

The Sacketts should be commended for pursuing a case that injects some much needed fairness into the compliance order process, which for too long has been dominated by an agency utterly disdainful of any constraints on its authority.

Daniel A. Himebaugh is an attorney with Pacific Legal Foundation in Bellevue, Washington. PLF is the oldest and most experienced nonprofit legal foundation litigating for property rights, free enterprise, limited government, and a balanced approach to environmental regulation. He is a guest contributor for Cascade Policy Institute, Oregon’s free market research center. This article originally appeared in Building Insight Magazine, April 2012.

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