Supreme Court justices critical of EPA in wetlands case

One of the little guys had his day in front of the U.S. Supreme Court Monday, and a lot of the big guys were watching.

In what could become an important decision regarding the Environmental Protection Agency’s enforcement rules, several Supreme Court justices appeared sympathetic to the cause of Mike and Chantell Sackett in their battle against the EPA and the Clean Water Act.

Four years ago the Sacketts purchased a 0.63-acre lot near Priest Lake in the Idaho panhandle with intentions to build a home. Preparing the site for construction meant three days of hauling fill dirt to the lot in 2007 before officials from the EPA and the U.S Army Corps of Engineers ordered a halt to the activity. The feds suspected the site was a wetlands.

Six months later the EPA sent the Sacketts a “compliance order” stating the land must be restored as a wetlands before the couple could apply for a building permit. Failure to comply with the order could put the Sacketts in jeopardy of fines as much as $37,500 per day.

The Sacketts’ case reached the Supreme Court because the EPA contends – and lower courts have agreed – that individuals do not have the right to go to court to challenge the agency’s wetlands decision. Specifically, the Sacketts had requested a hearing to contest the EPA’s order that their lot was a wetlands, but that request was turned down by a federal judge and the 9^th Circuit Court of Appeals in San Francisco who said the compliance order was similar to a warning to the landowners that they were violating the law. The appeals court said the Sacketts weren’t entitled to a hearing under the law until the agency had imposed a fine.

Those decisions left the Sacketts in limbo. They could do nothing with their lot, or start building and face ruinous fines. They chose to appeal their case to the Supreme Court.

Several groups favor the cause of the Sacketts, including developers, corporations, utilities, libertarians and members of Congress who rail against the heavy-handed enforcement of the EPA.

Others, however, believe a victory by the Sacketts could “undermine the government’s ability to promptly respond to environmental threats,” as Nina Mendelson, a University of Michigan law professor told a reporter for the Los Angeles Times. But she also acknowledged the EPA should consider allowing administrative hearings in cases that do not involve pressing environmental threats.

On Monday, observers in the Supreme Court gathered hints that the justices seemed sympathetic to the Sackett’s cause.

Justice Samuel Alito called EPA’s actions “outrageous,” and asked Deputy Solicitor General Malcolm L. Stewart, representing the EPA, “If you related the facts of this case…to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?”

Several other justices seemed to agree with the Sackett’s lawyer, Damien M. Schiff of the Pacific Legal Foundation, that those subject to the EPA orders should not have to wait for the agency to decide whether to go to court.

“For 75 years, the courts have interpreted statutes with an eye toward permitting judicial review, not the opposite,” said Justice Stephen G. Breyer.

The High Court will issue a decision in the case this summer.

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