WASHINGTON, March 21, 2012- The Supreme Court made a unanimous decision on behalf of property owners in Sackett v. EPA today, limiting the government’s power to enforce the Clean Water Act (CWA) and allowing landowners to challenge EPA compliance orders in court.
The Environmental Protection Agency (EPA) stopped the Sacketts from building on their land in 2007, because the agency classified the Idaho couple’s site as a wetland. The couple, who disagree that the site is a wetland, faced an EPA ‘compliance order’ that could charge up to $37,500 per day if the family refused to cease building and repair any damage to the land. The case addressed whether the Sacketts could seek judicial review of the compliance order, even though the EPA had yet to issue a final enforcement action.
Justice Antonin Scalia determined that "it is hard for the Government to defend its claim that the issuance of the compliance order was just 'a step in the deliberative process' when the agency rejected the Sacketts’ attempt to obtain a hearing.”
Scalia further explained the situation called for the Sacketts to comply with the order or the EPA would bring enforcement through judicial action. He and the other justices ruled that the property owners have the right to sue under the Administrative Procedure Act (APA).
“Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise,” Justice Antonin Scalia wrote in his opinion for the court.
The EPA argued that the government is less likely to issue compliance orders if judicial review is allowed, but Scalia essentially said the system of judicial review provides balance.
“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,” Scalia wrote. “Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.”
The American Farm Bureau Federation (AFBF) President Bob Stallman said the court’s decision “vindicates the rights of landowners” to challenge EPA compliance orders that “improperly assert jurisdiction over their land.”
“The decision gives landowners like the Sacketts their day in court, overriding the position taken by EPA and many prior courts that have denied them that right,” Stallman said.
Justice Samuel Alito used his written opinion to question the EPA’s regulatory authority and the Clean Water Act as a whole.
“The reach of the Clean Water Act is notoriously unclear,” he wrote. “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.”
He said the administration’s position in the case “would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.”
“Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem,” Alito added.
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