Supreme Court Rules EPA Orders Are Subject to Judicial Review

March 21, 2012 16:04

“The great inequity” of EPA’s position, he added, was that it essentially felt that it was above the law. The agency “doesn’t want a federal judge ever to review” compliance orders ….


By Lachlan Markay at Heritage Foundation


In a landmark decision for property rights law, the Supreme Court unanimously ruled on Wednesday that alleged violations of the Clean Water Act are not precluded from judicial review.

The decision will allow an Idaho couple to challenge a ruling from the Environmental Protection Agency that sought to fine the couple up to $75,000 per day for a supposed CWA violation.

The case involved an Idaho couple, Chantell and Michael Sackett, who were hit with massive fines for a construction project on their property, which the EPA deemed “wetlands” as defined by the CWA. They were ordered to halt construction, and told they would be finedx $37,500 each day that the land was not returned to its original state – and an additional $37,500 each day that they continued construction in violation of the order.

The Sacketts were left with no way to effectively challenge EPA’s order. They sued, arguing that EPA’s position violated their Fifth Amendment protections against seizure of their property without due process.

The court agreed. “In a nation that values due process, not to mention private property, such treatment is unthinkable,” Justice Antonin Scalia, who wrote the court’s decision, said of the EPA’s position.

The court did not weigh in on the EPA compliance order itself. Rather, it ruled that contrary to the EPA’s position, compliance orders under the CWA are subject to judicial review under the Administrative Procedure Act.

Scalia phrased it this way:

The EPA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. 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.

In an interview with Scribe, Damien Schiff, a senior attorney for the Pacific Legal Foundation who represented the Sacketts pro bono, identified judicial review as the central issue of the case. “It’s about the right to your day in court,” Schiff said.

“The great inequity” of EPA’s position, he added, was that it essentially felt that it was above the law. The agency “doesn’t want a federal judge ever to review” compliance orders, he noted.

Idaho Congressman Raul Labrador (R) lauded the decision in a news release, saying it “safeguards individual property rights against the encroachment of the federal government, a fundamental assurance of our Constitution.”

But even in the wake of the court’s decision, serious consideration should be given to the state of American environmental law in light of the Sacketts’ experience. Even given the opportunity for judicial review of EPA orders, the cost of such litigation often exceeds even the value of the property at issue. So while Americans now technically have an opportunity to challenge such orders, their de facto ability to do so is still tenuous.

“Regardless of the outcome of this case,” wrote Heritage’s Paul Larkin in January, “we ought seriously to consider thinking twice before passing another complex federal law that, while noble in its intent, leaves private citizens facing a crushing burden of potential financial liability merely for trying to stand their ground before the federal government.”

“Private citizens should not be forced into bankruptcy as the penalty for pursuing what has been called the ‘American dream,’” Larkin added.

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