In a late March decision, the U.S. Supreme Court ruled unanimously that property owners facing an Environmental Protection Agency (EPA) compliance order under the Clean Water Act (CWA) can seek judicial review before being forced to comply.
The case, Sackett vs. EPA, involved the Sacketts, a couple in Priest Lake, Idaho, who challenged EPA’s issuance of a CWA compliance order against them for filling wetlands without obtaining a permit. The couple did not believe their 0.63 acre lot contained wetlands, but they had no legitimate avenue to challenge EPA’s determination without subjecting themselves to an EPA enforcement action and huge fines.
After obtaining all local permits to build a modest home in Priest Lake, the Sacketts cleared their lot and laid gravel in preparation to pour the foundation. But before they could go any further, officials from the EPA showed up and declared their property a wetland. They denied the Sacketts a hearing and ordered them to restore the property, plant wetland vegetation that was not there before and wait up to five years for it to grow, and then apply for a CWA permit. If they did not comply, they could be subject to $75,000 per day in fines.
The Sacketts were represented by the Pacific Legal Foundation.
The government argued that the Sacketts’ claim was invalid because judicial review is available once enforcement actions go to court. The Court disagreed, finding that the Sacketts should be able to contest EPA’s findings under the Administrative Procedures Act (APA). The Justices found that the CWA does not preclude review under the APA.
In the majority opinion, Justice Scalia said the CWA’s “presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all....there is no reason to think that the CWA was designed to enable the strong-arming of regulated parties into ‘voluntary compliance.’”
As a result of the Sackett decision, the EPA will be forced to change how it does CWA enforcement. The agency issued 1,300 compliance orders last year.
Though the case focused on the CWA, it could have implications for EPA’s use of compliance orders under other statutes such as the Clean Air Act.
The case will also likely be used for legal arguments in various other litigation arenas dealing with the CWA’s jurisdictional reach.
Governor Sean Parnell welcomed the news that the Supreme Court unanimously overturned a 9th Circuit Court of Appeals decision denying the property owners access to the courts.
The State of Alaska took the lead on a multi-state brief urging the Supreme Court to permit property owners to challenge federal compliance orders.
When the Sacketts asked a court to review whether the EPA had jurisdiction over their property, the trial court and the 9th Circuit held that the CWA precludes pre-enforcement judicial review of the compliance order. Instead, the Sacketts would have only two choices. They could wait for the EPA to sue them to enforce the order, and in the meantime accrue huge fines. Alternatively, the Sacketts could restore their lot to its original condition, conduct a three-year environmental monitoring program, and request a permit to redo the work they had already done. Only then could the Sacketts ask the court to determine the reach of the federal agency’s jurisdiction.
The Supreme Court found that neither option provided the Sacketts with a meaningful remedy, and that the Sacketts should have an avenue to challenge the order now.
“This ruling is great news for the Sacketts and for Alaskan families,” Governor Parnell said. “Alaska is vulnerable when it comes to EPA regulations. Alaska possesses the largest geographic footprint of any state, more wetlands than all other states combined, and more coastline than the entire contiguous 48 states. We will continue to fight to protect property owners.”
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