Kevin Russell Guest

Posted Mon, December 12th, 2011 4:31 pm

Sackett v. EPA

In January, the Court will hear argument in Sackett v. EPA, No. 10-1062, a case involving governmental enforcement of federal environmental laws against private property owners.  The specific questions presented concern the EPA’s use of so-called “administrative compliance orders,” which assert that the property owner is in violation of an environmental law provision and demands that the owner bring itself into compliance, and remedy the effects of the violation, within a certain time.  The Court will decide whether the property owner can go to court to challenge the order or if it may only contest the EPA’s factual and legal assertions later, when the EPA sues the property owner civilly or criminally. 

The case in itself warrants discussion, but it also provides the Community an opportunity to discuss broader questions regarding the Court’s approach to property rights and how it resolves potential conflict between property rights and environmental protection.



  • Kevin Russell – 0 Promoted Comments

    Today, we begin with the basic question presented by Sackett. How should the Court resolve the question whether landowners may, as a matter of statutory or constitutional right, bring a pre-enforcement challenge to an EPA administrative compliance order?

    • Jim Manley – 1 Promoted Comment

      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.

      • Virginia Albrecht – 1 Promoted Comment

        Other comments have set forth the legal analysis demonstrating that Congress surely intended compliance orders issued under the Clean Water Act to be subject to judicial review. But in addition to the legal point, there are sound policy reasons why immediate judicial review is necessary. Whether a particular property has “wetlands” as defined by the Federal Wetland Delineation Manual and whether the wetlands constitute “waters of the United States” is not a matter easily discernable by anybody. Delineating a wetland and its boundaries is a highly technical matter, and the legal status of a wetland — ie, whether it is a water of the U.S. — is equally murky. Despite two Supreme Court rulings in the last 10 years rejecting broad assertions of federal regulatory power under the Clean Water Act, EPA and the Corps have refused to conduct a rulemaking that could draw some bright lines to give citizens fair notice what is and is not a “water of the United States.” So it can be the case when EPA or the Corps issues a Compliance Order that there is genuine disagreement, well-founded technically and legally, about whether a given piece of land has waters that require federal permitting. In that situation, an independent review by the courts will assure all involved that the assertion of federal authority has merit and should be honored. Or not. Insulating administrative actions from judicial review only breeds arrogance in the administrative agency and distrust and suspicion in the citizens who find themselves on the wrong end of a questionable compliance order but have no recourse.

        • Geochrim Reg – 0 Promoted Comments

          Your comment, like many other posters’ comments, lauds private property rights under the assumption that EPA would take action without judicial review. In fact, UAOs are pre-enforcement and pre-judicial review–read the Ninth Circuit decision, and you will see that judicial review is already built into the process. What the Sacketts are asking for is two bites of the apple: one shot in court pre-enforcement, and more review after EPA initiates enforcement proceedings with associated fines.

          EPA can issue UAOs to remedy environmental wrongs by specifying what needs to be done to responsive parties instead of having to get bogged down (pun intended) in litigation. Assuming the recipients of the UAOs are willing to correct the problem they have created. And don’t think they have the right to pave over every wetland they can get their hands on.

          What has been forgotten in many of these discussions is that the quality of the air we breathe, the water we drink and the habitats we enjoy are directly related to the quality of our ecosystems–ecosystems EPA is charged with protecting through timely, efficient means. A celebration of private property rights has more to do with an ideological fantasy in which what happends on one parcel is not connected to any others’ rights to clean air and water.

          And, of course, the courts are there to maintain the balance. And the Sacketts would have had their day in court, regardless of whether they had brought a suit of this timing.

          • richard roper – 0 Promoted Comments

            What you need to realize that is that the EPA should operate on macro level and admittedly they serve an important role. However when they impose them selves on small business’s that the state DEP and the local conservation commissions already over see, it becomes unbearable . I am in the middle of the state on a high hill, I have to succumb to the tedium of securing and maintaining environmental permits from 4 gov. bodies. The EPA did the same thing to me however they also issued a press release in community that I was trying to sell home in. This before I even had a chance to read the complaint. I had to hire lawyers and engineers just to answer their erroneous complaints. I was blackmailed into paying fines or suing for the same cost or more. They are pro’s I am most small business’s are amateurs in this arena. I asked if I could have a judge or a magistrate here this ludicrous charge and they offered an in house mediator. I could not believe this could happen in America. They belong dealing with the macro issues, and leaving the local issues to the state , that do not involve global harms. Then I cannot help but notice the politics of it all when Haliburten and others are poisoning water etc. and EPA is mandated to leave them alone. hahaha

    • Larry Joseph – 2 Promoted Comments

      The Due Process arguments are interesting, but unnecessary. They only come up in Question 2 if the Sacketts lack pre-enforcement judicial review in Question 1. Under both the APA’s waiver of sovereign immunity and its predecessor, officer suits in equity, a statutory form of review poses no bar to pre-enforcement review if the statutory review in either absent or inadequate. See 5 U.S.C. §703 (“The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action”). In addition to 5 U.S.C. §703, two other APA sections, 5 U.S.C. §§559, 705, should come into play in cases like this to avoid the Hobson’s choice of post-enforcement review (and the accompanying penalties if you lose) versus coerced (and non-recoverable) compliance with an expensive order that may be invalid. Under 5 U.S.C. §559, a subsequently enacted statute like the Clean Water Act does not limit review “except to the extent that it does so expressly.” Under 5 U.S.C. §705, “to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari … may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” Since there is plainly pre-enforcement review and/or relief in cases like this, there is no need to reach Question 2. To some extent, however, the lack of a need to reach the Due Process Clause under Question 2 derives from the Due Process Clause, which informed both the development of equity review and the drafting of the APA.

  • Anthony Caso – 4 Promoted Comments

    Sackett v. EPA
    SCOTUS Blog Community Discussion
    Day 1. Are Property Owners Entitled Judicial Review of Administrative Compliance Orders?

    Representing the National Federation of Independent Business Small Business Legal Center and the Center for Constitutional Jurisprudence, I filed an amicus brief in support of the property owners in this case arguing that they are entitled to judicial review of Administrative Compliance Order. To resolve the question, the Court must decide whether the order is “final” and if so whether the Clean Water Act impliedly precludes judicial review.

    In the Supreme Court, EPA is arguing that the order imposes no substantive legal obligations (beyond those already imposed by the Clean Water Act), but instead merely “‘expresse[s] [the agency’s] view of what the law requires.’” Respondent’s Brief at 28 (citing Fairbanks N. Star Borough v. United States Army Corps of Engineers, 543 F.3d 586, 594 (9th Cir. 2008)). That interpretation, however, is in conflict with the language of the order itself.

    Both the order and the cover letter from the agency stated that violation of the order would subject the Sacketts to civil penalties of up to $32,500 per day and administrative penalties of $11,000 per day for each violation.

    The order made a finding that the Sacketts placed fill dirt on their property near Priest Lake in Idaho and that the property included wetlands. The order requires the Sacketts to remove the fill dirt (to a location approved by EPA), restore the property to its original topographical condition, and provide EPA free access to the property. The order also contemplates a requirement for the Sacketts to plant “wetlands” vegetation on the property.

    So, is this a “final” agency action? Finality is judged by whether the action is the result of the culmination of agency proceedings and whether it has legal consequences. The compliance order in this case purports to make “findings and conclusions” which result in an “order.” There are no other administrative procedures available to the Sacketts. Thus, the order itself claims to be a culmination of agency proceedings. Similarly, the order itself claims to have legal consequences. As noted in the order, violation of the order can result in civil penalties of up to $32,500 per day (just under $1 million per month). The order is a final agency action.

    The next question then is whether review Congress precluded review of these orders. Section 704 of the Administrative Procedure Act establishes a presumption that judicial review of final agency actions is available unless the statute precludes review. Nothing in the Clean Water Act expressly precludes review of compliance orders. EPA argues instead that the Congress instead precluded review by implication.

    Here, EPA relies on Block v. Community Nutrition Institute, 467 U.S. 340 (1980), in which the Court held that preclusion of judicial review could be implied where an intent to preclude was “fairly discernable” in the text of the statute. A few years later, however, the Supreme Court ruled in Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), that courts should not imply preclusion of review in the absence of “clear and convincing evidence” of such an intent by Congress. Significantly, the Court in Bowen specifically rejected the argument that if Congress provided for review in some parts of the statute, but was silent in others, that such silence is sufficient to preclude review. Thus, silence of the Clean Water Act on the question of judicial review of Administrative Compliance Order is not a sufficient basis to preclude judicial review.

    Given the strong presumption in favor of judicial review in the Administrative Procedure Act and the legal consequences for violation of the order, the Court should find that judicial review is available in this case.

    The problem in this area is that lower courts still resort to the analysis in Block, often without reference to the decision in Bowen. The Court in this case can provide some much needed guidance to the lower courts on the question of implied preclusion of judicial review.

    • roxanne friedman – 4 Promoted Comments

      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 – 4 Promoted Comments

        This, of course, assumes that the Sacketts violated the Clean Water Act — something they wish to contest. EPA did not attempt to sit down and simply give notice to the Sacketts of a potential violation. They served a compliance order on them requiring them to essentially vacate their property. If this were a mere notice that carried no legal consequences, I would agree that it is not subject to judicial review. Under the Clean Water Act and the terms of the compliance order, however, violation of the order can subject the Sacketts to penalties of nearly a million dollars a month. Nothing in the text of the Clean Water Act prohibits judicial review of such a final agency action. Given the strong presumption of review under the Administrative Procedure Act, the Sacketts should have their day in court to argue that they have not violated the Clean Water Act.

        • roxanne friedman – 4 Promoted Comments

          That the law uses its in terrorem powers to enforce compliance is beyond question. Look at anti-trust treble damages, copyright statutory damages and injunctions, truth-in-lending statutory recission. Sometimes if you believe you are right and the government is wrong, you either have to eat crow or pledge your life, your fortune and and your sacred honor.

          This puts a special burden on law-reform-oriented public interest lawyers. There is plenty of sleazo input to the citizenry about the extent of first, second, fifth and fourteenth amendment rights, as well as duties under the sixteenth amendment. But when you face an actual client, it is your responsibility to explain what the law currently is, how it applies to the facts of the client’s case, and what the probable outcome of litigation is, regardless of one’s personal beliefs. Furthermore, the attorney and client and their opposition are going to be pushed by the district judge to reach a settlement; an important purpose of the law is to resolve conflict (not to sharpen it like public debate), and of lawyers is to bring their clients into compliance. Whether the Sacketts win or lose, did they understand the consequences of being Rosa Parks? Was this ever a reasonable litigation?

          • Virginia Albrecht – 1 Promoted Comment

            The analogy to Rosa Parks is apt. It takes a lot of backbone to question established authority, especially when the consequences of being wrong are so overwhelming.

            As for lawyers’ responsibility to advise their clients on the law, would that it were all that easy. Whether a particular property constitutes “waters of the US” is a difficult question of law and fact. There are often genuine issues in question — e.g., does the groundwater come within 18″ of the surface for 7 days every two years (and thus shows wetland “hydrology”)? does an ephemeral wash in the middle of the Sonoran Desert affect the Colorado River many miles away? If obtaining a 404 permit were like getting a driver’s license, perhaps the path of least resistance would be to ‘just go ahead and get a permit.’ But the 404 permit process, even for the smallest impacts, is arduous, time-consuming and expensive, and it usually requires the assistance of consultants (to delineate jurisdictional areas and prepare a mitigation plan) and often lawyers. Therefore, if there is some question about the legal status of the property, it only seems fair that that question be resolved before the landowner has to go through the permitting process. As a practical matter, only the most questionable assertions would be litigated because most people don’t want to go into court; they would rather just move forward with their project.

            Finally, there is nothing in the CWA that indicates any Congressional intent to preclude review of compliance orders. The APA, with its promise that final agency action would be reviewable, had long since passed when Congress enacted the CWA. So Congress acted against the expectation that agency actions would be reviewable. The government argues that allowing judicial review would somehow undermine its choice between proceeding administratively or judicially. But the potential for judicial review on the initiative of the landowner does not destroy the government’s choice. The government can still choose. If the Court holds that judicial review is available, that will just mean that the government will know when it makes its choice that the landowner will be able to get judicial review of its assertions. Is there really a problem with that outcome?

  • William Maurer – 1 Promoted Comment

    For too long, federal, state and local governmental bodies have looked at the regulation of private property as an area where any exercise of power, regardless of how unfair, burdensome, or capricious, is fair game. From failing to pay fair compensation for regulatory takings, to condemning private property to transfer to private entities, to creating procedures where the property owner is always at a severe disadvantage, the government has viewed owners as an inconvenience standing in its way and not individuals entitled to be treated with dignity and respect by the people who purportedly represent them.

    Sackett v. EPA is the latest example. The EPA’s stance in the case is that it may command immediate, severe and significant financial harm to a property owner without providing fair and timely judicial review. This stance is not only inconsistent with the commands of the Due Process Clause—which was designed to prevent arbitrary and unreviewable governmental action—it is repugnant to eight centuries of Anglo-American legal tradition. The Magna Carta, Parliament, Lord Coke, Blackstone, and the drafters of the U.S. Constitution and the Northwest Ordinance all viewed procedural fairness and a meaningful opportunity to be heard as a vital weapon against governmental abuse. Nonetheless, the EPA believes that twenty-first-century American property owners may be constitutionally treated less humanely, and offered fewer procedural rights, than medieval Englishmen.

    The EPA avoids this conclusion by claiming that Administrative Compliance Orders are “pre-enforcement” and that its “order” was really a suggestion that would not be enforced until the EPA went to court. The order at issue commands the property owner to comply with various statutory requirements within a specific timeline with mandatory language. It mandates that the Sacketts undertake expensive and burdensome changes to their land or face penalties of up to $37,500 a day and even criminal penalties. Calling something “pre-enforcement” does not make it so and an order that gives one the choice of spending thousands or face financial ruin or criminal charges is nothing if not active enforcement.

    The order at issue in Sackett mandated that the property owners turn their property into a nature preserve but did not allow them to challenge this conclusion or even whether the government has jurisdiction over their property until many months, and thousands of dollars, later. It is difficult to conceive of a policy so inconsistent with the basic tenets of Due Process and more capable of being abused. One hopes that the Supreme Court will see Administrative Compliance Orders for what they are—a mechanism to force Americans to do what the government wants without providing them meaningful access to judicial review at a time when that review can actually make a difference.

  • Kevin Russell – 0 Promoted Comments

    In this thread discuss: to what extent does the Constitution limit Congress’s authority to address environmental problems through legislation that limits the rights of private property owners? What provisions are implicated and what do they require?

    • Anthony Caso – 4 Promoted Comments

      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.

  • Kevin Russell – 0 Promoted Comments

    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?

    • Anthony Caso – 4 Promoted Comments

      In Dolan v. City of Tigard, 512 U.S. 374, 392 (1994), the Court noted: “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances.” There is certainly nothing in the text of the Constitution that gives any indication that property rights are not to be afforded “equal” status with protections of speech, religion, trial by jury, or the other rights listed in the Bill of Rights.
      At the Founding, protection of property rights was considered synonymous with protection of personal liberty. In 1768, the editor of the Boston Gazette wrote: “Liberty and Property are not only join’d in common discourse, but are in their own natures so nearly ally’d, that we cannot be said to possess the one without the enjoyment of the other.” Editor, Boston Gazette, Feb. 22, 1768, at 1. In 1775, Arthur Lee declared, “The right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty”. Arthur Lee, An Appeal to the Justice and Interests of the People of Great Britain, in Present Dispute with America 14 (4th ed. 1775).
      Notwithstanding the statement of the Supreme Court in Dolan, however, the courts seem to be more than willing to relegate property rights to poor relation status. As noted in my comment yesterday, the current state or property rights jurisprudence fails to protect against regulatory takings short of a total confiscation. This is not consistent with either the text or original understanding of the Constitution.
      Are property rights on par with other rights listed in the Constitution? Consider that property is a focus in the Third, Fourth, and Fifth Amendments (both the Takings and the Due Process Clauses) of the Constitution. Even ignoring the writings of the Founding era, that fact alone should give you the answer.

    • Philip Thoennes – 2 Promoted Comments

      It is clear that individual property rights, insofar as they exist, are afforded equal status as the other enumerated rights of the Constitution. However, like the protection of speech in the First Amendment, there are times and places when the right is absent. Staying with our speech comparison, the boundaries that have been defined (obscenity, commercial speech, libel, slander, et cetera) create a Boolean status between protected and otherwise, and the same is true of property rights. An owner’s “bundle” of rights is not limitless, and of particular importance here is the common law principle of public trust.
      As stated in the Fifth Amendment, “private property shall not be taken for public use, without just compensation.” What then is public use? As the Court said in Kelo v. City of New London, 545 U.S. 469 (2005) and Hawaii Housing Authority v. Midkiff 467 US 229 (1984), property need not be in the public domain to confer benefit to the public. The commons that are collectively owned and cared for, such as clean air and water, should not be restricted by the other rights inherent in private ownership.
      The protection of those resources within the public trust does not diminish property rights, for the owner never possessed individual rights to those resources in the first place. Indeed, the public trust is itself a right to that property, as owned by the public and protected by the state. Nothing I read in the Constitution diminishes this fact.

  • Kevin Russell – 0 Promoted Comments

    Has the Supreme Court adequately enforced constitutional protection of property rights? Has it gone too far in protecting property rights at the cost of effective environmental protection or other important public goals?

    • Dana Berliner – 1 Promoted Comment

      To anyone who litigates in the area of property, today’s SCOTUSblog question “has the Supreme Court adequately enforced constitutional protection of property rights?” has a painfully obvious “no” for an answer. Instead, the Court has assiduously failed to enforce constitutional protections for property rights for the past decade, sharply undermining these vital protections in virtually every area of property litigation.

      Kelo v. New London, 545 U.S. 469 (2005), which my organization, the Institute for Justice, litigated, is of course a prime example. The Constitution requires that takings be for “public use.” Upscale private offices and upscale condominiums are self-evidently not being used by the public. And any claim that they would benefit the public in some vague way by paying taxes was fatally undermined by the uncontested evidence presented in the case that there was no market for the project and it would not be built. The Court showed no interest in these serious constitutional problems and allowed condemnation for the public benefit of imaginary jobs and taxes. The project then proceeded exactly as the evidence showed it would—absolutely nothing happened. It lay completely empty for years and now is being used as a dumping area for debris. No construction has occurred.

      Meanwhile, the Court has turned down at least three applications for certiorari in follow-up cases to Kelo, where the facts showed evidence of explicit intention to benefit a private party. See Didden v. Village of Port Chester (2007); Goldstein v. Pataki (2008); and Tuck-It-Away v. N.Y. State Urban Dev. Corp. (2010). It has also denied certiorari in a case challenging the failure to give any compensation at all to the nonprofit lessor of a property being taken by eminent domain, despite a crystal-clear split of authority. See City of Milwaukee Post No. 2874 Veterans of Foreign Wars v. Redev. Auth. of the City of Milwaukee (2010).

      In the area of regulatory takings, the Court has crafted a jurisprudence that makes it virtually impossible to bring regulatory or inverse takings claims in federal court. Supposedly, one needs to litigate the compensation claim first in state court and then bring the constitutional issues to federal court. However, there is a whole series of cases making it impossible to actually get to federal court later, so virtually no one ever can. And many states have rules that compensation is not available, yet litigants still cannot get to federal court. Takings are the only enumerated constitutional right that the Court has decided to relegate to state courts. Just this term, the Court denied certiorari in Colony Cove Properties v. City of Carson (2011), which would have allowed the Court to revisit this indefensible state of affairs.

      For a brief period of time, the Court appeared at least to be protecting owners against “exactions”—attempts by state and local governments to extract property and favors from owners in exchange for allowing them to get building permits. See Nollan v. Cal. Coastal Com., 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994). More recently, localities have switched from demanding property concessions (“give us 5 acres and we’ll let you have your permit”) to cash demands (“give us $30,000 and we’ll let you have your permit”). There is a clear-cut split of authority as to whether such demands are subject to the same analysis as demands for property. Yet the Court denies review of these cases as well, most recently this term in West Linn Corporate Park v. City of West Linn (2011).

      Even in the area of civil forfeiture, where property is taken from people who are neither charged nor convicted of a crime, the Court denies the constitutional protections that should be present. In Bennis v. Michigan, 516 U.S. 442 (1996), the Court found that states could take property from “innocent owners”—people who had done nothing wrong—if the government could show by a preponderance of the evidence that the property was involved in a crime. Then, last term, the Court accepted review and then vacated as moot a case where the City of Chicago seized property with the intention to forfeit it and then provided no opportunity for judicial review for months, if not years. During that time, the victims of these seizures had no access to their cars, property, or cash. They weren’t charged with a crime, but they couldn’t get their property back. The Court dismissed the case because the property owners had not appealed the denial of class certification. See Alvarez v. Smith, 130 S.Ct. 576 (2009). Thus, in Chicago and many other places, such seizures continue without any due process protections.

      In short, on basically every type of property issue, from outright takings to due process protections, the Court has failed to protect core property rights. Indeed, it usually avoids even having to rule on these issues by simply denying certiorari despite important issues and obvious splits of precedent. No vital constitutional right should be treated in this fashion by the highest Court in the land. We can only hope that the Court will recognize that it must turn once again to the area of property and begin hearing and deciding these cases.

    • Anthony Caso – 4 Promoted Comments

      The answer to both questions has to be no. From the government standpoint, the Takings Clause is the leaset disruptive individual right. It never (especially with the broad definition of “public use”) prohibits government action. At most it merely requires government to compensate the property owner for the taking. Nonetheless, state and local agencies continue to argue (and the courts continue to agree) that portions of an individual’s property can be taken without invoking the obligation for compensation.

  • Kevin Russell – 0 Promoted Comments

    To what extent should regulation of property be left to the states, free from federal oversight? In other words, do constitutional federalism principles restrict Congress’s authority to enact environmental laws or other legislation that implicates private property rights? Conversely, do environmental problems call for a unified, national set of rules that should displace state regulation?

    • Anthony Caso – 4 Promoted Comments

      For the most part, there is no federal role for the regulation of property. The Constitution grants Congress specific powers and property regulation is not among those powers.

      That said, when an area of federal regulation is within the powers delegated to Congress, then state regulation must give way to that federal power. The problem, however, has been regulatory over-reach. The Clean Water Act is a good example.

      Although the Act grants power to regulate the “waters of the United States” which are in turn defined as “navigable” waters, federal agencies insist on regulating purely intrastate activities. The Solid Waste Agency of Nothern Cook County case is a good example of this. In that case, the Army Corps of Engineers claimed jurisdiction under the Clean Water Act over an intrastate body of water that had no connection interstate commerce — other than the fact that migratory birds might like to stop there. The Supreme Court rejected that theory, noting that “Congress does not casually authorize adminstrative agencies to interpret a statute to push the limit of congressional authority.” 531 U.S. 159, 172-73.

      This tendency by regulatory agencies to expand their power is the reason we need more active judicial oversight to protect property rights.

    • Virginia Albrecht – 1 Promoted Comment

      The CWA has a strong “cooperative federalism” policy, which recognizes and respects the authorities of the States to control their land and water resources. See section 101(b) of the Act. Although EPA is charged with administering the Act, many of the key authorities in the statute rest with the States — e.g., the authority to establish water quality standards and to determine whether a particular project is meeting water quality standards. EPA does have certain authorities, which can be exercised in carefully defined circumstances, to take control of certain decisions if EPA disagrees with what a State is doing. But outside those carefully defined circumstances, the statute makes the decisions of the States controlling. Of course, the boundaries of State/EPA authority have been a source of constant tension in the administration of the Act, and in practice EPA’s authority has grown at the expense of the States’.

      On the Section 404 side, Corps regulations pay lip service to local land use decisions, but the Corps’s “public interest” regulations claim unlimited authority to issue or deny a permit based on the needs and welfare of the people. A federal police power analogous to local land use authority.

  • Erick Ihlenburg – 0 Promoted Comments

    Is a CAA ACO final agency action when the statute explicitly states that any ACO shall not take effect until EPA provides an opportunity to confer–a provision that is lacking in the CWA? (Compare CAA 113(a)(4) with CWA 309(a)(4)). Does the TVA case help to answer this question?

    How does the issue in Sackett square with the D.C. Cir. GE Superfund due process challenge, which held that EPA’s issuance of UAOs, without providing for pre-enforcement review, does not offend due process? The Court denied cert in that case–why? Is it significant that the respondent in the Superfund case was GE, one of the world’s largest multi-national corporations and a notorious polluter, whereas in Sackett it was an individual private landowner?

    Assuming the Court sides with the Sacketts, how will EPA seek to enforce CWA violations going forward? Will the Sacketts ultimately find themselves in a worse situation than they were before?

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