Posted on 01/13/2012 at 01:22 PM by Benjamin Bruner
The United States Supreme Court recently heard arguments in Sackett v. EPA, which in its simplest form pits individual residential landowners against the Environmental Protection Agency (EPA) in a battle over some Idaho dirt. The battle involves a complicated statutory scheme of the Clean Water Act (CWA) which protects wetlands from development and which is enforced by the EPA. When the EPA believes a landowner is violating environmental laws, it may issue an administrative compliance order requiring the landowner to take certain actions. The agency can then seek judicial enforcement of the order if the landowner fails to comply. Under the CWA, the EPA is not required to give the recipient a chance to challenge the order in court before the agency initiates a lawsuit for noncompliance. The primary issues in Sackett v. EPA are whether a property owner can obtain pre-enforcement judicial review of the EPAs administrative compliance wetlands order and, if not, whether this violates the property owners rights under the Due Process Clause. The Plaintiffs (the Sacketts) in this case sought to build their dream home on an undeveloped lot in a developed subdivision in the Idaho panhandle. Nearly all of the surrounding lots were developed. The Sacketts obtained the proper permits and began grading the lot for construction of the home, but the EPA then issued an administrative compliance order informing them that the property was a wetland under the CWAs definition and directing them to cease any and all construction. Furthermore, they were directed to commence costly restoration or face the threat of substantial penalties (up to tens of thousands of dollars per day!). The Sacketts strongly disagreed with the EPAs determination that the property was a protected wetland and have ever since sought pre-enforcement judicial review by a federal court to resolve this dispute. Up to this point the Sacketts have failed in that regard, as both the district court and the U.S. Court of Appeals (Ninth Circuit) agreed with the EPA that the administrative order was not subject to a pre-enforcement challenge. Recently, however, the Sacketts had the opportunity to persuade the Supreme Court that a federal district court should in fact referee their dispute with the EPA. Allowing pre-enforcement review of administrative compliance orders would not allow the subject parties to ignore and avoid compliance with such an order (i.e. continue to pollute, develop the wetland, etc.), but would allow them the opportunity to argue their case against the order. Permitting pre-enforcement review would prevent the EPA from hitting the subject parties with huge non-compliance penalties before the issue can be addressed and answered. A decision is expected by June.