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Argument preview: Jousting with the EPA

At 10 a.m. on Monday, the Supreme Court opens its first sitting of the new year with oral argument in an important environmental law case, Sackett, et al., v. Environmental Protection Agency (docket 10-1062).  Arguing for the private property owners will be Damien M. Schiff, an attorney with the Pacific Legal Foundation in Sacramento, Calif.   Arguing for the EPA will be Deputy Solicitor General Malcolm L. Stewart.



At a time when limited-government sentiment seems to be sweeping the nation, no agency of the national government has faced the barrage of criticism that regularly is aimed at the Environmental Protection Agency.  It is regarded in many conservative circles as a bureaucratic bully that essentially functions with no restraints.    In a new refrain, the critics have accused the agency of killing jobs by over-zealous restraints upon business, and they have been impatient to make that theme work for them in the Supreme Court.  The critics, though, could not have had a better case to lay before the Justices, portrayed in David v. Goliath terms, than the dispute that an Idaho couple of modest means has been having with the EPA for more than four years.  Their lawyers have said that the couple only wants to be left alone, to build their dream house near a lake.

It is difficult to argue that this portrayal of the plight of Chantell and Michael Sackett made no difference to the Justices.

Just three weeks before the Court granted review in their case last June, it had refused to grant a hearing to the General Electric Co., a corporate giant that had put forth nearly the same legal grievance (General Electric Co. v. Jackson, docket 10-871).  GE had complained because it faced EPA orders that, it said, would affect its stock price and its credit rating, taking its property with no chance to test the orders in court first.

Contrast that with the opening page of the Sacketts’ petition, saying that they owned “a small lot in a built-out residential subdivision that they graded to build a home,” but soon faced an EPA order claiming that their property was a “wetland without a federal permit.”   The order mandated that they “remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years,” or else face “great cost” and a “threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties.”

If the Sacketts do wind up prevailing against EPA, the result no doubt would not be confined to situations like theirs.  Indeed, most of the amici lined up on the side of the Sacketts in the case are business interests, ranging from the U.S. Chamber of Commerce, to the National Association of Manufacturers, to the American Petroleum Institute, to the National Association of Home Builders, and more, as well as conservative legal advocacy groups.   Actually, up to this point, there are no amici on the side of the EPA, even though an environmental group, the Natural Resources Defense Council, is seeking to join in the case, apparently to try to undercut the image of the Sacketts as hapless victims.

Like GE, the Sacketts protested to the Court that they had “no evidentiary hearing or opportunity to contest the [EPA] order.”  They also said that the lower courts “have refused to address the Sacketts’ claim that the lot is not subject to federal jurisdiction.”

That is what this dispute is about.  Under the federal Clean Water Act, the EPA is assigned the task of protecting the nation’s waters, and that includes wetlands, from degradation due to pollution.  Among actions considered to be polluting is the discharge onto wetlands of dredged soil, rock and sand, leading to runoff that will pollute navigable waters.  The Sacketts’ lot, in the small Idaho town of Priest Lake (population 750 outside of tourist season), is just down the road from that lake.  The Sacketts did not get a dredging permit from the EPA or from the Army Corps of Engineers, as the Act requires.

Under the Act, when EPA discovers a violation of the permit requirement, it has the authority to issue an order requiring compliance.  The accused violator must get a permit, and remedy any harms caused by discharging without a permit.  If the targeted individual or company does not comply, EPA cannot take further direct action on its own, but it has the option to go to court for an enforcement order.  A federal judge may impose civil penalties up to a maximum of $37,500 a day.  The Act does not give the accused violator a right to any hearing before EPA, and it does not allow that person or entity to sue EPA; the response is limited to answering, if EPA has chosen to sue.

The Sacketts, in order to avoid the penalties, restored the land to its former state.  In the meantime, they had argued, to no avail, that the wetlands at issue were not within the government’s regulatory jurisdiction.   They then filed a lawsuit of their own in federal court, claiming that the lack of an opportunity to challenge the compliance order before they had to obey it violated their constitutional right to due process.  A federal District Court dismissed their case, concluding that Congress had not intended to allow any pre-enforcement challenge, leaving it to the EPA to start an enforcement proceeding at its option.  The Ninth Circuit Court agreed, noting that every federal appeals court that had confronted the issue had agreed that there was a bar to judicial review at the initiative of a targeted violator.

(In the General Electric case, the challenge, also based on the Due Process Clause, had been to similar restrictions on judicial review, but in another federal law enforced by EPA: the Comprehensive Environmental Response, Compensation, and Liability Act.)

Petition for Certiorari

The Sacketts’ petition for review, with its heavy emphasis on their personal story, framed the question they were posing as only a matter of their claimed rights under the Clean Water Act.  In the body of their petition, however, it was clear that they also were raising a Due Process claim.  They argued, for example, that the “regime as countenanced by the Ninth Circuit” would violate the Constitution, if allowed to prevail.  The petition candidly acknowledged that there was no split among the federal appeals courts, noting that the Ninth Circuit decision paralleled similar rulings in four other Circuit Courts.

The main problem of procedural irregularity under the Act, the Sacketts argued, was that their opportunity for judicial review was “deferred to some undefined point in the future,” unless they were willing to spend years and more money than their property was worth to get a dredging permit.

Although the Ninth Circuit had said that the couple could get court review of any penalties assessed against them, if they choose not to obey the compliance order, the couple said, that “gives cold comfort to landowners.”  They have no assurance that a court-imposed fine would be small, especially since the Act sets such high ceilings.  And they have no guarantee that they also would not face criminal penalties.

EPA’s power, the petition contended, is even greater than the authority a federal court would have.  Before a judge may issue a compliance order in the form of an injunction, it noted, there must be notice and a prompt hearing.  EPA can issue the equivalent of an injunction without either, the couple argued.

The plight, the Sacketts asserted, is not theirs alone.  “Thousands of landowners across the country” are in similar situations, the petition said.

EPA, through Justice Department lawyers, urged the Court to bypass the case, relying heavily upon the lack of a conflict among the appeals courts.   The government also relied upon the Supreme Court’s 1994 decision in Thunder Basin Coal Co. v. Reich, noting that the Justices had said that denial of a pre-enforcement chance to go to court would violate due process “only when the practical effect of coercive penalties for noncompliance is to foreclose all access to the courts.”  That is not the case for the Sacketts, the EPA brief argued.  No penalties are imposed before judicial review and, when EPA does go to court for an enforcement order, the recipient of a compliance order “has a full opportunity to argue…that the order is invalid because the conduct on which it was premised did not violate the CWA.”  And, it said, the amount of penalties is up to the court, not to EPA.

On June 28, the Court granted review, but changed the question it would answer to make it clear that the Due Process issue was very much a part of the case. The Court phrased the question as, first, whether the Sacketts could seek pre-enforcement review under the Administrative Procedure Act, and, if not, whether that inability violated the Due Process Clause.

Merits Briefs

The Sacketts’ brief on the merits sought to keep the focus on the David v. Goliath approach the petition had taken.  It described the complexity of the Clean Water Act, and the uncertainty under it as to what constitutes a wetland that is subject to federal jurisdiction under the Act.  The brief noted that the Supreme Court had twice in recent years ruled that the EPA and the Corps of Engineers “have overextended their reach under the Clean Water Act.”

It then commented: “It is no surprise then that average citizens may not, and sometimes cannot, know whether they have regulable ‘wetlands’ on their property and that jurisdictional disputes arise.” Making matters worse, it said, was that the citizen has no right to go court to contest whether wetlands do exist on his property.

Summarizing the arguments their brief would make, the Sacketts began with the claim that the compliance order issued to them violated their Due Process rights.  Enlarging the scope of their constitutional claim, it also intimated that the enjoyment of their property had been taken from them, and that they had lost their protection against unreasonable searches and seizures. “The order will continue to deprive them of these rights for the immediate future,” the brief contended.

Sensibly, though, the Sacketts’ lawyers also suggested that the Court could avoid ruling on the constitutional questions they were pressing, simply by interpreting the Administrative Procedure Act as the basis for court review of the validity of the EPA order.  What the couple faces right now, the brief said, is a final action by the EPA that is deeply threatening to them.

EPA’s merits brief argued that the Sacketts had no right of court review, either under the Clean Water Act or under the Administrative Procedure Act.  On the CWA, the government brief said, a compliance order adds no new legal obligations on the part of a targeted violator, since the Act itself already had outlined the duties they had to comply with the law.  A compliance order, it suggested, is little more than a form of communication between an agency and a regulated individual or entity about legal obligations.

On the APA, the government asserted that the compliance order does not amount to final agency action, but “marks only a step in EPA’s decision-making process, not its consummation.”  The compliance order, it added, “did not have the kind of concrete legal consequences that generally are necessary to constitute final agency action.”

Turning to the Due Process issue, the EPA brief asserted that the Sacketts have no constitutional right to immediate judicial review of an EPA order.  Any penalties must await a court order in an EPA enforcement action, the brief said.  Moreover, it said, the couple has “no generalized constitutional entitlement to an adversary opinion assessing the legality of conduct in which they wish to engage.”  They could have gotten a decision on that conduct, the brief noted, if they had sought a dredging permit, as the CWA commanded them to do.

As indicated earlier, the flow of amici filings in this case is all on one side — at least among the amici briefs so far accepted for filing by the Court.  Most argue that the strong presumption that judicial review is available, under the Administrative Procedure Act, should lead to a ruling allowing the Sacketts and others facing compliance orders from the EPA to have their day in court, before they have to comply.   The U.S. Chamber of Commerce brief levels a stinging assault on the EPA, accusing it of routinely resorting to onerous compliance orders even in non-emergency situations, when normally there should be an opportunity for more orderly assessment of its power to act.   A group of 11 states also have sided with the Sacketts, defending their prerogatives to regulate lands within their borders and defending their own lands against heavy regulation by EPA.


Perhaps the most telling aspect of this case, as it goes to oral argument, is that the Court reached out to take it despite the complete unanimity in the lower courts on the absence of court review of the EPA’s compliance orders before they actually are enforced, under the various laws that the agency enforces.  It is quite rare for the Court to step in under those circumstances, and the temptation is strong to conclude that the Court has granted review in order to reverse.   Added to that is the fact that, in accepting review, the Court rewrote the question in order to put considerably more emphasis upon the constitutional Due Process issue than the Sacketts’ own lawyers had chosen to do in their petition.

And yet another factor, in the Sacketts’ favor, is the recollection that the very same issues had been passed up by the Court just a bit earlier in the General Electric case.   Whether or not that meant that the Justices were emotionally attracted to the plight of this couple, it suggested strongly that the Court was quite interested in those issues, and the Sacketts’ petition presented it in a more agreeable way.

Perhaps one more facet of the Court’s recent history is worth noting: as the Sacketts’ lawyers wisely pointed out, the Court has grown somewhat suspicious of the grasp of federal agencies — including the EPA — for an ever-widening superintendence over waterways and wetlands.   The case of that down-home lot near the shore of Priest Lake, a couple of blocks away from the lake shore itself, may have raised its own questions as to how much environmental harm the building of the Sacketts’ house would threaten.







Recommended Citation: Lyle Denniston, Argument preview: Jousting with the EPA, SCOTUSblog (Jan. 4, 2012, 7:07 PM),