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January 12‚ 2012
Sackett v. EPA: United States Supreme Court Critical of EPA
By Jeffrey R. Porter
and Jennifer Sulla
On January 9, the United States Supreme Court heard oral
arguments in Sackett v. EPA, a challenge
by homeowners to EPA’s issuance of an enforcement order under the Clean
Water Act (CWA). Most of the Supreme Court Justices were openly sympathetic
to the plight of the homeowners and receptive to the notion that they
should have the right to challenge the order in court before any EPA
attempt to enforce it.
The homeowners, Chantell and
Michael Sackett, own a .63-acre lot in Idaho
which they partly filled in with dirt and rock to build a house. EPA issued
an order alleging that the lot was a wetland subject to the CWA and that
the Sacketts violated the CWA by putting fill on
the lot without first obtaining a federal permit. EPA ordered the Sacketts to remove the fill and restore the property to
its original condition, on pain of up to $32,500 in penalties per day per
violation.1 EPA
refused the Sacketts an EPA hearing on the order.
The Sacketts sued. The Federal District Court
dismissed the lawsuit on the ground that the CWA bars judicial review of a
compliance order before EPA brings an enforcement action in federal court.
The Ninth Circuit Court of Appeals affirmed the dismissal.
At oral argument Supreme Court Justice Alito asked the
Government’s lawyer “don’t you think most ordinary homeowners would
say this kind of thing can’t happen in the United States?” He then
summarized the Sacketts’ plight:
[Y]ou
buy property to build a house. You think maybe there is a little drainage
problem in part of your lot, so you start to build the house and then you
get an order from the EPA which says: You have filled in wetlands, so you
can’t build your house; remove the fill, put in all kinds of plants; and
now you have to let us on your premises whenever we want to.
You have to turn over to
us all sorts of documents, and for every day that you don’t do all this you
are accumulating a potential fine of $75,000. And by the way, there is no
way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.
The Government’s response had two main elements. First, the Sacketts could have sought a permit before taking the
actions that were the subject of EPA’s order. Several of the
Justices, including Justice Alito, Justice Scalia and Justice Kagan, noted the “weirdness” of that response which
would essentially put every landowner in the country on notice that they
should apply for a permit, whether they think they need one or not, thereby
“flooding” the Army Corps of Engineers (the permitting agency) with permit
applications.
The second element of the Government’s response was that the Sacketts would still have their day in court when EPA
enforced the order. The Government’s lawyer argued that EPA might not
be prepared to defend its decision-making earlier than that:
I don’t think it would be accurate to say that we
have done all the research we would want to do if we were going to be
required to prove up our case in court.
Supreme Court Chief Justice Roberts explained the problem
with this element of the Government’s response: “[M]ost
land owners aren’t going to say, I’m going to risk the $37,000 a day,” he
said. “All EPA has to do is make whatever finding it wants, and realize
that in 99 percent of the cases, it’s never going to be put to the test.”
If the tone and substance of the oral argument is any
indication of the pending decision, the Sacketts
will win and EPA will face the prospect of more immediate review of some
number of its enforcement orders. A decision is expected by June.
* * *
Click here to view Mintz Levin’s Environmental
attorneys.
1 Maximum
per-day penalties have since been increased to $37,500.
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