Rul­ing faults EPA for its ‘strong-arm’ en­force­ment

Idaho cou­ple can fight agency over wet­lands

The Washington Times Daily - - Front Page - BY VA­LERIE RICHARD­SON

An Idaho cou­ple fac­ing ru­inous fines for at­tempt­ing to build a home on pri­vate prop­erty that the fed­eral gov­ern­ment con­sid­ered pro­tected wet­lands may chal­lenge an or­der from the En­vi­ron­men­tal Pro­tec­tion Agency, the Supreme Court ruled Wed­nes­day in a unan­i­mous decision.

The case was con­sid­ered the most sig­nif­i­cant prop­erty rights case on the high court’s docket this year, with the po­ten­tial to change the bal­ance of power be­tween landown­ers and the EPA in dis­putes over land use, de­vel­op­ment and the en­force­ment of en­vi­ron­men­tal reg­u­la­tions.

Crit­ics called the EPA ac­tion a clear ex­am­ple of over­reach, as the prop­erty in ques­tion was a small va­cant lot in the mid­dle of an es­tab­lished res­i­den­tial sub­di­vi­sion in the Idaho Pan­han­dle.

The gov­ern­ment ar­gued that al­low­ing EPA com­pli­ance or­ders to be chal­lenged in court could se­verely de­lay ac­tions needed to pre­vent im­mi­nent eco­log­i­cal dis­as­ters.

Jus­tice An­tonin Scalia, writ­ing for the court, said that Michael and Chantell Sack­ett are en­ti­tled to ap­peal the EPA or­der, re­ject­ing the agency’s ar­gu­ment that al­low­ing landown­ers timely chal­lenges to its de­ci­sions would un­der­mine its abil­ity to pro­tect sen­si­tive wet­lands.

“The [law’s] pre­sump­tion of ju­di­cial re­view is a re­pu­di­a­tion of the prin­ci­ple that ef­fi­ciency of reg­u­la­tion con­quers all,” Mr. Scalia said in the decision. “And 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.”

The EPA is­sues nearly 3,000 ad­min­is­tra­tive com­pli­ance or­ders a year that call on sus­pected vi­o­la­tors of en­vi­ron­men­tal laws to stop what they’re do­ing and re­pair the harm they’ve caused. Ma­jor busi­ness groups, home­builders, road builders and agri­cul­tural in­ter­ests all came out against the EPA in the case.

Mr. Sack­ett said the Supreme Court rul­ing af­firmed his be­lief that “the EPA is not a law unto it­self.”

“The EPA used bul­ly­ing and threats of ter­ri­fy­ing fines, and has made our life hell for the past five years,” Mr. Sack­ett said in a state­ment. “As this nightmare went on, we rubbed our eyes and started to won­der if we were liv­ing in some to­tal­i­tar­ian coun­try. Now the Supreme Court has come to our res­cue and re­minded the EPA — and ev­ery­one — that this is still Amer­ica.”

Con­gres­sional Repub­li­cans, who had ral­lied to the Sack­etts’ cause, called the Supreme Court rul­ing a clear re­buke to Pres­i­dent Obama and his en­vi­ron­men­tal agenda.

“This decision de­liv­ers a dev­as­tat­ing blow to the Obama ad­min­is­tra­tion’s ‘War on Western Jobs,’ “said Sen. John Bar­rasso, Wy­oming Re­pub­li­can and chair­man of the Se­nate Western Cau­cus. “This vic­tory by one Western cou­ple against a mas­sive Washington bu­reau­cracy will in­spire oth­ers to chal­lenge this ad­min­is­tra­tion’s reg­u­la­tory over­reach.”

Build­ing on a ‘wet­land’

The case stemmed from the cou­ple’s pur­chase of a 0.63-acre lot for $23,000 near Priest Lake, Idaho, in 2005. The Sack­etts had be­gun to lay gravel on the land, lo­cated in a res­i­den­tial neigh­bor­hood, when they were hit by an EPA com­pli­ance or­der in­form­ing them that the prop­erty had been des­ig­nated a wet­land un­der the Clean Water Act.

The Sack­etts were or­dered to stop grad­ing their prop­erty and were told that they would face fines of up to $75,000 per day if they did not re­turn the par­cel to its orig­i­nal state. When the Sack­etts at­tempted to con­test the or­der, the agency de­nied their re­quest for a hear­ing.

Jus­tice Scalia noted that the Sack­etts’ prop­erty bore lit­tle re­sem­blance to any pop­u­lar con­cep­tion of a wet­land, pro­tected or not.

Read­ing a sum­mary of his opin­ion in court, he noted that the Sack­etts have never “seen a ship or other ves­sel cross their yard.”

The 9th U.S. Cir­cuit Court of Ap­peals, which re­jected the cou­ple’s ap­peal in Septem­ber, said the Sack­etts had other av­enues of re­lief, such as un­der­go­ing a wet­lands per­mit­ting process — the cost of which would be as much as 12 times the value of the land.

The gov­ern­ment also ar­gued that cou­ple had the op­tion of en­gag­ing in “in­for­mal dis­cus­sion of the terms and re­quire­ments” of the EPA or­der, in­clud­ing “any al­le­ga­tions ... be­lieve[d] to be in­ac­cu­rate.”

Such an op­tion hardly con­sti­tutes ad­e­quate re­course, Jus­tice Scalia wrote.

“The mere pos­si­bil­ity that an agency might re­con­sider in light of ‘in­for­mal dis­cus­sion’ and in­vited con­tentions of in­ac­cu­racy does not suf­fice to make an oth­er­wise final agency ac­tion non­fi­nal,” he wrote in his 16-page opin­ion.

The Pa­cific Le­gal Foun­da­tion in Sacra­mento, which rep­re­sented the Sack­etts with­out charge, called it “a prece­dentset­ting vic­tory for the rights of all prop­erty own­ers.”

“This is a great day for Mike and Chantell Sack­ett, be­cause it con­firms that EPA can’t deny them ac­cess to jus­tice,” said the foun­da­tion’s prin­ci­pal at­tor­ney, Damien Schiff, who rep­re­sented the cou­ple in court. “EPA can’t repeal the Sack­etts’ fun­da­men­tal right to their day in court.”

The Supreme Court’s rul­ing makes it clear that “EPA bu­reau­crats are an­swer­able to the law and the courts just like the rest of us,” Mr. Schiff said in a state­ment.

Green fears

Sev­eral en­vi­ron­men­tal groups op­posed the Sack­etts’ chal­lenge, ar­gu­ing that a rul­ing in the cou­ple’s fa­vor would make it more dif­fi­cult to pro­tect wet­lands and not­ing that the law­suit was sup­ported by in­dus­try groups such as the Amer­i­can Petroleum In­sti­tute.

Larry Levine, se­nior at­tor­ney with for the Nat­u­ral Re­sources De­fense Coun­cil, said in a Jan­uary blog post that a rul­ing in fa­vor of the Sack­etts would “make it harder for the EPA to take ac­tion to promptly cor­rect on­go­ing en­vi­ron­men­tal harms.”

The EPA will be “bogged down in court, us­ing limited re­sources to fight law­suits in­stead of en­forc­ing the Clean Water Act,” Mr. Levine pre­dicted. “Or, more likely, EPA will cut down on the use of such or­ders to avoid get­ting bogged down in court.”

Jus­tice Sa­muel An­thony Al­ito Jr. added in a con­cur­ring opin­ion that Congress needs to clar­ify con­fu­sion over the scope of the Clean Water Act. He said the opin­ion is­sued Wed­nes­day is “bet­ter than noth­ing, but only clar­i­fi­ca­tion of the reach of the Clean Water Act can rec­tify the un­der­ly­ing prob­lem.”

While agree­ing with the decision, Jus­tice Ruth Bader Gins­burg said in her own opin­ion that she agreed only with the nar­rower find­ing that the Sack­etts have the right to con­test the EPA find­ing that their prop­erty is sub­ject to the Clean Water Act. The court did not de­cide larger is­sues, Jus­tice Gins­burg said.

Rep. Raul R. Labrador, the Idaho Re­pub­li­can who rep­re­sents the Priest Lake area, con­grat­u­lated the Sack­etts for their “un­wa­ver­ing courage and self­less sac­ri­fice.”

“The fed­eral gov­ern­ment is an in­tim­i­dat­ing force against or­di­nary cit­i­zens, and stand­ing up to its bu­reau­cracy re­quires ex­tra­or­di­nary brav­ery,” Mr. Labrador said in a state­ment. “The EPA is one of the many fed­eral gov­ern­ment agen­cies whose over­reach jeop­ar­dizes our civil lib­er­ties and ob­structs our pur­suit of pros­per­ity.”

This ar­ti­cle is based in part on wire ser­vice re­ports.

AS­SO­CI­ATED PRESS

Michael and Chantell Sack­ett of Priest Lake, Idaho, are en­ti­tled to ap­peal the EPA or­der that blocked their plans to build on prop­erty they own, the Supreme Court ruled Wed­nes­day. The gov­ern­ment ar­gued that al­low­ing EPA com­pli­ance or­ders to be chal­lenged in court could se­verely de­lay ac­tions needed to pre­vent im­mi­nent eco­log­i­cal dis­as­ters.

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