Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


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.

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1  Maximum per-day penalties have since been increased to $37,500.