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Opinion recap: Taking EPA to court

Making clear that the courts remain open for citizens who believe they are being “strong-armed” by the government, the Supreme Court on Wednesday gave property owners a right to sue the U.S. Environmental Protection Agency to make an immediate challenge to an EPA order to stop a development that the agency says threatens the nation’s waters.  Faced with such an order, the targets of the EPA need not wait until the agency chooses to sue them to enforce the order; they have a right, under the Administrative Procedure Act, to sue as soon as they receive an order to which they object, according to the unanimous decision.  More broadly, the ruling enhances citizens’ right generally to pick the time to mount a court challenge to government orders — provided that those orders are in a final form.

The decision, written by Justice Antonin Scalia, opens the federal courthouse door to an Idaho couple who have a .63-acre parcel of property close to Priest Lake, and plan to build a house on it.   EPA considered their property to be a “wetland,” and told them to stop the development, and restore the property to its former state — or face fines that the government said could reach $75,000 a day.  The EPA acted under the Clean Water Act, and it insisted — with the approval of lower courts — that the couple could not sue to challenge the order and had to wait for court review at the option of EPA.   That was the result the Court overturned in Sackett, et al., v. EPA, et al. (docket 10-1062).

The Court stressed that it was not deciding whether Michael and Chantell Sackett will win their court case, but only that they had a right to file it at their choosing, now that the EPA “compliance order” is final.   The decision reflected the strongly negative reaction most of the Justices had to the denial of a right to sue when this case was argued in January.   Justice Samuel A. Alito, Jr., who was among those protesting most strongly at that hearing, wrote a separate opinion Wednesday complaining that the scope of the Clean Water Act’s application to private property is unclear, and Congress or the EPA should move to clarify it.  Alito also argued that the treatment of the Sacketts, and others denied a right to sue EPA, was “unthinkable” in a country that values due process.

The decision, in which Justice Scalia called access to courts a proper response to “the strong-arming of regulated parties” by government agencies, will not only benefit owners of small plots of property targeted by an EPA restoration order.  The same victory that the Sackett couple won in this decision had been sought unsuccessfully last Term by a corporate giant, General Electric Co., which had appealed with virtually the same legal grievance against being barred from suing EPA over a compliance order.  Thus, the decision, while it came in a specific factual situation that smacked of “David vs. Goliath,” also will turn out to be a major legal lift for corporate America, too.

The ruling also emerged at a time when the EPA is under heavy political protest, among Republicans in Congress and conservative voters, who regard the EPA as an example of government grown too large with too much power to intrude into individuals’ private lives.  EPA, of course, has its strong defenders — in the environmental community and, indeed, in the Obama Administration, which had defended the bar to anti-EPA lawsuits that the Court has now struck down.

When the Sacketts go ahead with their expected lawsuit, they are expected to argue that their land does not even qualify as a “wetland” subject to the Clean Water Act and that, even if it does, the EPA’s compliance order went too far.   The Justices did not decide either issue, leaving that to the lower courts to deal with first.  Justice Ruth Bader Ginsburg said in a separate opinion that she had joined the Court’s opinion on the understanding that it had left such issues open.


Recommended Citation: Lyle Denniston, Opinion recap: Taking EPA to court, SCOTUSblog (Mar. 21, 2012, 10:45 AM),