Supreme Court Unanimously Allows Idaho Couple To Fight EPA

Justice Antonin Scalia wrote for a unanimous Supreme Court in an EPA case.

WASHINGTON -- The Supreme Court on Wednesday unanimously reversed a lower court opinion that forbade an Idaho couple from challenging an Environmental Protection Agency compliance order that carried with it tens, if not hundreds, of thousands of dollars in potential penalties.

A few months after Chantell and Michael Sackett began preparations to build their dream home just north of Idaho's Priest Lake in 2005, the EPA came calling with an order that they stop and restore their lot to its original condition. The EPA determined that the Sacketts' property contained "wetlands," from which the dirt and rock they used to fill their property would flow into Priest Lake in violation of the Clean Water Act's prohibition on "the discharge of any pollutant by any person" without a permit into "navigable waters," defined in the law as "the waters of the United States." The Sacketts did not believe that their property was subject to the Clean Water Act and brought suit, but lower courts refused the Sacketts an opportunity to fight the order -- and with it, the civil penalties of up to $75,000 per day of non-compliance that they were potentially accruing -- until the EPA itself chose to bring an action.

Justice Antonin Scalia, writing on behalf of the entire Court, allowed the Sacketts' suit to proceed. The government argued that the compliance order was "a step in the [EPA's] deliberative process" over whether to bring an enforcement action against the Sacketts, and therefore not the kind of "final agency action" that would trigger the Sacketts' ability to sue. Rejecting that argument, Scalia wrote that "[t]here is no reason to think that the Clean Water Act was uniquely designed the enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review -- even review of the question whether the regulated party is within the EPA's jurisdiction."

The decision represents a win not only for the Sacketts but also for the libertarian legal community and property rights advocates, who argued that the EPA's previously unchallengeable compliance orders represented the administrative state run amok.

Still, the decision does not mean that the Sacketts, or anyone else now able to push back against EPA compliance orders, will ultimately prevail in their lawsuits.

Justices Ruth Bader Ginsburg and Samuel Alito wrote separate concurring opinions to signal a less-than-unanimous future should the Supreme Court tackle the legality of the EPA's Clean Water Act compliance orders. The justices deadlocked on ideological lines in a 2005 case challenging the EPA's broad definition of "navigable waters."

"Whether the Sacketts could challenge not only the EPA's authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order is a question today's opinion does not reach out to resolve," Ginsburg wrote. "Not raised by the Sacketts here, the question remains open for another day and case."

Alito implored Congress to fix the "notoriously unclear" scope of the Clean Water Act. "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, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy," Alito wrote. "Allowing aggrieved property owners to sue ... is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem," he wrote.

Comments

[bd189]

10:16 AM on 03/23/2012

the epa needs to use it's resouces on getting the asian carp under control and out of the great lakes rather than going after a couple building a house in the potato state!

[separatingwheatfromchaff]

09:25 AM on 03/23/2012

Here in Illinois it's illegal to fill known floodplain property because it forces your neighbors to experience higher water levels during a flood.I've heard of special permission if a retention pond is built to make up for the lost water retention.I'm not to sure what the court is saying in this instance or what the EPA is saying.The article isn't real clear on facts.

[ibsteve2u]

02:44 AM on 03/23/2012

Article doesn't mention those who filed "friends of the court" briefs for the Sacketts. Concerned citizens like...General Electric. I quote from their brief ( http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-1062_petitioneramcugeneralelectricco.authcheckdam.pdf ):

The law at issue at this case, the Clean Water Act (“CWA”), 33 U.S.C. § 1319(a)(3), is one of a handful of environmental statutes that, unlike other regulatory schemes in U.S. administrative law, do not afford a timely and meaningful hearing either prior to or (in cases of emergencies) immediately after the issuance of an administrative order depriving the recipient of property. These outlier statutes authorize EPA to issue administrative orders with the force of law directing parties like GE to undertake expensive and time-consuming cleanup and compliance actions. Despite an exemplary safety and environ-mental record, the size, scope, and nature of GE’s business operations mean that the company is sub-ject to numerous administrative orders by the U.S. Environmental Protection Agency (“EPA”) requiring GE to undertake costly cleanup actions.

End quote. You would have thought that GE would have included a certain key word - "unnecessary" - in the final sentence if a need to perform a cleanup of lethal toxins did not exist.

So all of you who think this is a victory for individual Americans? lollll...hope you and your kids don't breath, eat, or drink of anything that Corporate America can touch. Ever.

[Artemesian]

08:19 AM on 03/23/2012

Well said - I know that certain groups are avidly watching the results of this case such as GE as you mentioned, who were battling a Superfund cleanup - like the Farm Bureau and Homebuilder's Association. I wonder what kind of sweeping effect this will have on other environmental issues for those who can really tie up the EPA in courts, and for the CWA. I was shocked with the Supreme Court, and especially Justice Alito's remarks about the EPA enforcing standards for clean water and air woulod be such a "grievous burden" on a property owner. This couple filled in a federally designated wetlands without getting the proper approvals. For me, if I couldn't build my "dream house" in a certain area because it was environmentally sensitive, I wouldn't do it. I'd find another place. I don't know how other homes got the approval to be built, but perhaps they were built before current environmental laws?

I'm also surprised that the concept of "judicial review" is so arbitrary - back last April, Congress tacked on a rider removing a specied from ESA protection (the first time Congress has ever done such a thing) as a condition for the national budget, and that precluded judicial review.

[Artemesian]

08:24 AM on 03/23/2012

sorry, CWA should read Clean Air Act in fifth line above. Thanks! :)

[Gerald Villella]

11:36 PM on 03/22/2012

The Ninth Circuit once again exposed as a recklessly radical court. 9-0; couldn't even get ACLU Ginsburg to support the EPA's indefensible overreach.

[Artemesian]

10:12 PM on 03/22/2012

1. Water - 7-30 consecutive days
of continuous soaking by surface or ground water

2. Saturated Soils - the water fills in between soil particles,
creating anaerobic (no air) conditions within 6-18 inches
of the surface for 2-4 weeks during the growing season

3. Special Plants - for roots to grow without access
to soil oxygen requires special systems to pipe it there,
adaptations only hydrophytes (water-loving - wetland plants) have.

This is the definition of a wetlands. Special plants obviously don't develop overnight but over many years. That is the true definition in my opinion. All this ruling does is set a precedent that will make the EPA's job that much harder by tying up in litigation and delays. This couple could have worked with the EPA and the Army Corps of Engineers without penalty, but they chose not to and are being used for political purposes IMO. That area of Idaho is famous for its wetlands, so it's rather doubtful that they didn't know IMO.

[bakbayray]

08:23 PM on 03/22/2012

Many years ago, an attempt was made to redefine "wetlands," by reducing the number of days in a row that an area had to be wet in order to qualify. I believe that it was settled at seven (7) days in a row. Is this still the legal definition of a wetland?

[Artemesian]

08:07 PM on 03/22/2012

How would you propose to protect our water supply and environment without an agency? Leave it to companies and private landowners to "do the right thing?" Ha.

This couple could have easily filed for a mitigating permit with the EPA; the fact that they didn't speaks volumes - they knew it they would be turned down. By the description of the vegetation and animal habitat surounding this property, it most definitely qualifies as a wetlands. Cedar swamp, beaver dams, cattails. The definition of wetlands is one where the animal and plantlife has adapted to a specific type of environment. A lot more than a puddle left after a rainstorm, as some would imply. While they won the right to challenge it, they still have to show that it isn't a wetlands they want to build on. We shall see.

[George Hanshaw]

09:25 PM on 03/22/2012

Look at google earth for their lot. It is in the MIDDLE of a residential area. What the EPA claimed in their legal case (go ahead and read it yourself) was that by putting the Sacketts lean fill on their own land were engaged in point source pollution. That is patently ridiculous. Does drainage from their property eventually end up in Priest Lake? Oh yeah, BUT THE SAME CAN BE SAID FOR ALL OF THEIR NEIGHBORS HOMES.

The EPA DEFINED THEIR OWN definition of a wetland, it wasn't given to them by the Clean Water Act, and they defined their own definition of point source 'pollution.'

Neither of these EPA 'determinations' have been blessed by Congress or court, and now the EPA will have to JUSTIFY their actions, and convince Judges and jurors that their interpretation of the law is the correct one.
It's a welcome change.....

[Artemesian]

09:47 PM on 03/22/2012

"The U.S. Environmental Protection Agency (EPA or sometimes USEPA) is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress."

At some point they must have been blessed by Congress or executive order, but as we all know that blessing is subject to the political climate of the day, which is going backwards at the moment. The regulations are authorized by Congress.

[Son of Liberty 1765]

07:47 PM on 03/22/2012

THe EPA ios a rogue agency and needs to be eliminated reserving the right to regulate and enforce to the states as the 10th amendment intended. All federal regulatory agencies not with the purpose of national security as its charge should be eliminated permanently.

[jbtex]

08:40 PM on 03/22/2012

You mean the right to not regulate.

[Artemesian]

07:44 PM on 03/22/2012

Who is representing and funding this case? Pacific Legal Foundation, who:

PLF is the first and oldest conservative/libertarian public interest law firm in the United States.PLF was established for the purpose of defending and promoting individual and economic freedom in the courts. To that end, PLF attorneys litigate, file amicus curiae briefs, and participate in administrative proceedings with the goal of supporting free enterprise, private property rights, reasonable environmental regulations, and the principle of limited government.

PLF is a non-profit organization under Section 501(c)(3) of the Internal Revenue Code, and contributions to the Foundation qualify for a charitable tax deduction. PLF does not charge for legal services, but instead provides representation in cases raising important policy issues that go beyond the narrow interest of the parties before the court.

"PLF's environmental law litigation has frequently involved challenges to federal regulation of private property under the Clean Water Act or the Endangered Species Act. For example, PLF attorneys represented a Minnesota property owner who was denied the right to build on his property in Contoski v. Scarlett, a case that resulted in the removal of the bald eagle from the endangered species list."

[George Hanshaw]

09:27 PM on 03/22/2012

Who was funding the EPA? Lots of us who don't WANT to fund the EPA. So what.

They had their chance, just like everyone else, to make their case before the Supreme Court.

Their interpretation of the law went down because it was judged unconstitutional, nine to nothing.......

[Artemesian]

03:42 PM on 03/22/2012

"For regulatory purposes under the Clean Water Act, the term wetlands means "those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas."

[taken from the EPA Regulations listed at 40 CFR 230.3(t)]

"In April 2011, the EPA and the U.S. Army Corps of Engineers released draft guidance to clarify protection of waters under the Clean Water Act. About 230,000 public comments on the draft guidance were received by the agencies. Most recognized the importance of effective implementation of the Clean Water Act to protect human health and water quality."

Seems pretty clear that a wetlans is a lot more than just "wet for part of the year." The property may be the owner's, but the groundwater and watershed is the country's, especially where public health is concerned. Businesses can't pollute, and and are fined accordingly, and neither should private landowners. Freedom doesn't mean the ability to do anything you want, wherever you want, whenever you want. You have to allow the agency entrusted to protect our environment and health to do its job, or you're saying the agency is in name only with no real authority.

The ruling means this couple get their day in court; I hope it doesn't mean a lawsuit anytime environmental protections are inconvenient.

[Joebeamish]

02:01 PM on 03/22/2012

Alito's blistering ignorance of the 401 section of the Clean Water Act {"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..."} is so enormously aggravating and disturbing. He's writing an opinion seemingly without any idea about what the regulations are, how wetlands are defined and delineated, the review and consultation process for land owners, even which agency administers the act in the first place (the ACE Sammy, not EPA). The fact that such a case has come before the court in the first place...oh, I just can't handle it. ARGHHHHH...

[George Hanshaw]

09:30 PM on 03/22/2012

"The fact that such a case has come before the court in the first place...oh, I just can't handle it. ARGHHHHH.."

Try rebreathing in a brown paper bag. It's the treatment of choice for hyperventilation.

How can I break this to you......, the decision was NINE to ZERO. EVERY JUDGE, conservative or liberal, disagreed with the EPAs interpretation of the Clean Water Act.

Why are you picking on Alito?

[This American]

10:57 PM on 03/22/2012

We will soon see what an Idaho jury says about this. HAHAHAHAHAHAHA

[George Hanshaw]

11:56 AM on 03/22/2012

Anyone who DOESN'T believe this ruling will cause the EPA to be more cautious and less aggressive is imply deluding themselves. Even the President's proposed budget has in it what - by the standards of the Beltway - are rather massive cutbacks in funding for the EPA.

http://earth911.com/news/2011/02/15/president-proposes-12-6-percent-cut-to-epa-funding/

Now, given this ruling, they simply aren't going to have the funding to risk going to court every time someone puts fill dirt on their half-acre building lot. Even without this ruling, they were going to have to pull in their horns somewhat. With this ruling, they will need to be far more circumspect in their actions. A good thing, I think, because this one was stupid.

[Bklein153]

09:11 AM on 03/22/2012

Again, everyone imagines this ruling is a victory for their side - whether it be left or right. Actually, booth sides should be happy. the court just affirmed a basic principle (and one both side should praise) that you have the right to challenge a government agency's ruling. This is good and i the principle of our legal system. Citizens should be able to challenge any arbitrary (i don't mean that in a derogatory way) ruling. The regulatory system in this system is vast and effects many things both sides consider valuable. We as citizens deserve our day in court if we are affected by these rulings. Believe it or not, this ruling is clear evidence that our judicial system works. Everyone should celebrate!

[greengrl]

09:00 AM on 03/22/2012

For everyone boasting that this was a unanimous decision, please note the decision was not only that the couple could continue to fight the EPA. Nothing about this decision says the couple or the EPA was right or wrong.

[George Hanshaw]

11:04 AM on 03/22/2012

Ah yes, but that IS the important part, because this is a precedent for other agencies BESIDES the EPA.

The unelected government bureaucrats now MUST be obliged to defend their actions in a court of law. That alone will rein in the powers of these bureaucratic Mandarins and expose their arbitrary and capricious abuse of power to the checks and balances of another branch of government.

ANYTHING that even POTENTIALLY further hobbles an otherwise uncontrolled bureaucracy can only be a GOOD thing.

[Vrano]

08:57 AM on 03/22/2012

For all you enviro-freaks out there lamenting the decision....
All this decision did was allow this couple (and by extent, anyone now) the ABILITY to sue the EPA. It doesn't mean that the couple will be able to win. The couple still has the government bureaucracy arrayed against them in court. So do not fret my econuts, they will probably end up not winning. Though, I do see what they are suing over going up before the Supreme Court. THEN you can freak out.

[Bklein153]

09:19 AM on 03/22/2012

A Pleasant surprise - someone who actually read and COMPREHENDS the decision. The only people sad about this would be someone who thinks that government can do anything it wants without being questioned - also known as fascist. The Left has to understand this enhances their ability to question the government when Republican Presidential appointees issue regulatory decisions. Again a win!

[Poes Mom]

12:52 AM on 03/25/2012

I heard both the man and the lawyer this evening on the radio. The EPA is still racking up non compliance fees to the tune of $70 thousand a DAY, totaling over $100 million so far because he hasn't unfilled the puddle and because he hasn't planted some so called wetland plants that they insist he plant, plants that were never on his property in the first place. The lawyer said that now he doesn't have to prove his 3/4 acre is not a wetland. Rather, the EPA has to show that it IS. I'm rooting for him. His property was inspected by the Corps of Engineers and approved for building before the EPA came down on him. It even has sewer on it, approved and installed by the city. I'm glad he stuck to his principals. He feels he's in the right and had the guts to fight for his rights.