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Today in the Community: December 14, 2011

Today in our discussion of Sackett v. EPA and property rights we ask: does the Constitution protect property rights on par with individual rights such as the right to equal protection and free speech?  Should property rights be afforded equal status with other individual constitutional rights? Why or why not?

Some great comments from yesterday  follow the jump.

Jim Manley

Mountain States Legal Foundation filed an amicus brief demonstrating two straightforward reasons why judicial review of compliance orders is required: (1) judicial review is available under the Administrative Procedure Act (“APA”), because the Clean Water Act (“CWA”) does not “expressly” preclude review; (2) Congress did not intend to preclude judicial review of compliance orders that assert jurisdiction based on factually intensive analysis.

The Sacketts’ compliance order is final agency action, reviewable under the APA (5 U.S.C. § 704). The compliance order is premised on the Environmental Protection Agency (“EPA”) Administrator’s determination that the subject property falls under the jurisdiction of the CWA, and that the Act has been violated. The compliance order represents the consummation of the agency’s decisionmaking process with respect to these issues and violation of the compliance order carries with it independent legal consequences.

Because the CWA was enacted subsequent to the APA, section 12 of the APA (5 U.S.C. § 559) requires that any modification of the judicial review provisions of the APA must be “expressly” stated in the CWA. Here, the Ninth Circuit entirely ignored the controlling significance of the fact that the CWA does not expressly preclude immediate judicial review of compliance orders. Instead, the Ninth Circuit focused on “fairly discernable” inferences gleaned from the CWA. The Ninth Circuit’s approach violates the plain language of the APA and the Court’s precedents.

Moreover, the Ninth Circuit’s conclusion that the structure of the CWA, its objectives, its legislative history, and the nature of compliance orders all indicate that the CWA forecloses immediate judicial review is plainly in error. By analyzing the statutory scheme in a vacuum, the Ninth Circuit failed to recognize that the EPA has expanded its jurisdiction to such an extent that denying immediate judicial review of compliance orders in this context is inconsistent with Congressional intent in passing the CWA.

MSLF has been involved in CWA cases for decades. It has members throughout the United States that have a tangible interest in this case. Many of these members’ livelihoods depend on the continued development of minerals, oil and gas, timber, agriculture, livestock, and commercial and residential real estate. Many of these activities require the use of land and water resources that could be impacted by the regulatory authority asserted by EPA.

roxanne friedman

No good deed goes unpunished. If the EPA had gone directly to an enforcement proceeding and sought penalties dating back to when the Sacketts took their unlawful actions, we would hear them screaming about lack of fair notice. Some of the violations the EPA encounters will take years to resolve, with a study and monitoring period to determine the scope of problem and the appropriate means of remediating it. The notice is an opportunity to sit down with the EPA and work out a compliance schedule. If the Sacketts want to play hard ball and stand on their self-proclaimed property right to despoil the environment, they are welcome to do so; the enforcement proceeding will be brought and they will have full due process.

Anthony Caso

This is really the wrong question. The first question is what provisions of the Constitution authorize Congress to act. The Constitution (as written) does not grant Congress plenary power to regulate on any subject. Instead, the Constitution is a limited grant of power and Congress must be able to justify the exercise of its power by the provisions of Article I.

The Supreme Court has yet to rule on the precise scope of Congressional power to regulate intrastate activities for purely environmental concerns – although the Health Care litigation may give some hints. The Court has consistently refused to take up cases challenging Congress’ power to regulate noncommercial, intrastate species under the Endangered Species Act, for instance. The Court has, however, recognized that there are some limits to the Commerce Power under the Clean Water Act. In Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001), the Court rejected the “migratory bird rule” as a basis for the exercise of jurisdiction under the Clean Water Act. Under that rule, if a migratory bird could consider landing in a body of water, then that lake or pond would then be considered “navigable” for the purposes of the Clean Water Act no matter how isolated it might be from any interstate waterway. The government argued that the fact that migratory birds crossed state lines and people liked to watch those birds created a sufficient connection to interstate commerce for purposes of the Commerce Clause. The Court rejected that line of analysis noting that it raised “significant constitutional questions.”

If Congress has the authority to regulate, property owners still claim some protection from the regulation under the Takings Clause. Unfortunately, the Supreme Court has not interpreted the Takings Clause of the Fifth Amendment to grant significant protection to landowners if the regulation does not take all of the property. Instead, using the test devised in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), the property owner’s loss is balanced against the government’s purpose for the regulation.

Recommended Citation: Kevin Russell, Today in the Community: December 14, 2011, SCOTUSblog (Dec. 14, 2011, 10:00 AM),