Justices question EPA's ‘compliance orders' impact on landowners

By Sara Wyant

© Copyright Agri-Pulse Communications, Inc.

WASHINGTON, January 11, 2012 -A clash between homeowners and the federal government over what classifies as “protected wetlands” reached the Supreme Court this week when justices heard oral arguments over whether a property owner can get judicial review of an EPA wetlands order if the agency has not brought its own lawsuit.

The property rights case, Sackett v. Environmental Protection Agency, arose when Chantelle and Michael Sackett bought approximately half an acre of land and, in 2007, began filling the land with dirt and rock to construct a home. The EPA issued the Idaho landowners a compliance order stating that the land they bought qualified as wetlands and that, under the Clean Water Act, they must cease construction, repair the damage done or possibly face a fine of up to $37,500 per day.

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The Sacketts disagreed with the EPA's assertion, but have so far failed to convince district courts that they may challenge the order by obtaining judicial review.

“The compliance order is a final agency action that imposed a significant liability on them,” said attorney for the Sacketts, Damien Schiff. “The Sacketts have the right to review. They have had no opportunity for their day in court.”

The EPA argued that the compliance order imposed no new legal obligations beyond those the Sacketts were already subject to under the CWA. Therefore, they have no right to an immediate judicial resolution. The EPA also claimed the compliance order did not have requisite “concrete consequences” that are needed to constitute a “final agency action” - a contention also disputed by the Sackett's.

The Sacketts face a choice between either complying with the order or defending a possible enforcement action because they did not seek a permit or consult with the EPA or Corps of Engineers before beginning to alter the land, according to the EPA. Further, the Agency argued that if the Sacketts sought a permit at the beginning of their construction plans, they could have sought judicial review without exposing themselves to fines.

“All we're saying is they can't discharge fill, wait to see whether EPA notices, and then insist upon immediate judicial review if EPA notices and objects," Justice Department lawyer Malcolm Stewart said.

The landowners have yet to win their case in any lower court, but the high court justices agreed to hear their arguments and on Monday, conservative members of the bench heavily criticized the agency.

“It seems strange to apply for a permit on the grounds that they don't need a permit at all,” Justice Joseph Alito asserted. “Don't you think most homeowners would think this kind of thing can't happen in the United States?”

The EPA issues almost 3,000 administrative compliance orders per year that call on alleged violators of environmental laws to stop and repair the harm they've caused.

Chief Justice John Roberts mentioned that very few people would contest a compliance order once it arrived, due to the risk of heavy fines.

“All EPA has to do is make whatever finding it wants, and realize that in 99% of the cases, it's never going to be put to the test,” he said.

General Electric, the American Farm Bureau Federation and the American Civil Rights Union are three of the 13 industry groups that filed an amicus brief in support of the Sacketts. AFBF criticized EPA's compliance orders for bringing uncertainty to the uses of land.

“The CWA has, in short, become a tool for regulators to micromanage even the most routine decisions of farmers and ranchers,” states the AFBF amicus brief.

“And then there are the massive costs associated with compliance ‑ demanded on pain of even more severe civil and administrative penalties,” according to the AFBF. “Landowners are thus coerced into undertaking hugely expensive measures without judicial oversight.”

The Court's decision, to be made before summer, could have an impact on a wide range of EPA programs. Environmentalists seek to preserve the EPA's ability to enforce the CWA, while critics hope the court limits the power of an agency they see as arbitrary and out of control, according to a brief of the case written my Marquette University law professor Jay E. Grenig.



Original story printed in January 11, 2012 Agri-Pulse Newsletter.

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