By Johanna R. Thibault, Esq.
March 25, 2012
This was a big week for environmental law, or was it? The U.S. Supreme Court issued its opinion in the closely watched Sacket v. U.S. Environmental Protection Agency case. Thought to have potential implications on environmental and non-environmental enforcement programs administered by federal agencies. Instead, the Supreme Court kept its decision appropriately narrow addressing only the administrative issues at hand leaving the constitutional due process issues aside.
The facts of the case were simple and alarming to most U.S. citizens, including the nine members of the Supreme Court. After filling and grading their residential lot near Priest Lake, Idaho, the Sackets received an Administrative Compliance Order from the EPA, stating, among other things, that they had unlawfully filled wetlands located on their property and they were to restore the wetlands to their original state or face civil penalties up to $75,000 per day in fines. The Sackets immediately sought a hearing with the EPA to argue that they did not in fact have wetlands on their property, only to be denied.
In response to not receiving a hearing, the Sackets filed (through the Pacific Legal Foundation) a petition in federal district court asserting that EPA's Administrative Compliance Order was subject to judicial review and EPA's characterization of their property as having wetlands was erroneous. Denying them of this judicial review, the Sackets argued was a violation of their constitutional right to due process.
The district court avoided the legal questions and instead dismissed the petition for lack of subject matter jurisdiction stating the Administrative Compliance Order did not constitute a final agency action subject to judicial review. Upon appeal, the Ninth Circuit affirmed siding with many other circuits that had made the same decision on this issue.
Despite requesting the parties to brief the due process issue, the Supreme Court, in a rather terse and narrow opinion written by Justice Scalia, overturned the decision strictly on administrative law grounds. Specifically, Justice Scalia focused on the legal question of whether the Administrative Compliance Order was in fact a final agency action, which of course, the Court unanimously decided it was.
Being that this was the first wetlands case to cross the Supreme Court in over five years, the case has seen the hype and attention the Sackets had hoped they deserved. If you believe the hype, you'd say that the Sackets kicked this one out of the ball field, and they really showed the EPA. Truth is, really all the Sackets received from the Supreme Court was a ticket to start over and actually argue the factual issue in court; a task they initiated over five years ago.
Unlike the SWANCC v. Army Corps of Engineers (2001) case that eliminated the "Migratory Bird connection" to include isolated wetlands under federal jurisdiction, or the Ripanos v. United States (2006) case that further defined jurisdictional wetlands as only those immediately adjacent to a navigable, waterway, the Sackets' victory merely answered an administrative law question that was made ambiguous in the Clean Water Act. A question that for all intents and purposes is bound to give EPA a huge headache with regard to its enforcement procedures. That is because a majority of the EPA's enforcement procedures take the form of Administrative Compliance Orders instead of enforcement hearings or litigation proceedings, which can be more costly, time-consuming, and resource intensive.
My environmentalist side wants to say that Mr. Sacket, as an excavation contractor, should have known better and have sought proper authorizations before proceeding to fill his property. That said, I know that the facts are far more complicated than that and that this is less a case about a property owner avoiding hefty permitting fees and major delays and more about keeping the EPA in check. The Clean Water Act affords the EPA other options to handle enforcement matters, yet it choses to take this route, which Justice Scalia very poignantly describes as "strong-arming [ ] regulated parties into 'voluntary compliance' without the opportunity for judicial review." Something the Court stated the Clean Water Act was not "uniquely designed to enable."
The Supreme Court had the opportunity here with Justice Scalia to author a colorful opinion going at great lengths about due process and the lack of unambiguous definitions of jurisdictional wetlands in the regulations. Instead, I find myself actually agreeing with Justice Scalia, a position I have to admit is not common for me, that the issue before the court was narrow and the opinion was decidedly kept the same.
There is no doubt the reprecussions of this decision will be felt throughout the enforcement section of the EPA, and it may also be possible that wetland protection could be somewhat hindered as well. Overall though, it appears the Supreme Court has rightly reigned in an administrative procedure that had gone somewhat amuck and was beginning to threaten the constitutional rights of regulated parties.
March 25, 2012
This was a big week for environmental law, or was it? The U.S. Supreme Court issued its opinion in the closely watched Sacket v. U.S. Environmental Protection Agency case. Thought to have potential implications on environmental and non-environmental enforcement programs administered by federal agencies. Instead, the Supreme Court kept its decision appropriately narrow addressing only the administrative issues at hand leaving the constitutional due process issues aside.
The facts of the case were simple and alarming to most U.S. citizens, including the nine members of the Supreme Court. After filling and grading their residential lot near Priest Lake, Idaho, the Sackets received an Administrative Compliance Order from the EPA, stating, among other things, that they had unlawfully filled wetlands located on their property and they were to restore the wetlands to their original state or face civil penalties up to $75,000 per day in fines. The Sackets immediately sought a hearing with the EPA to argue that they did not in fact have wetlands on their property, only to be denied.
In response to not receiving a hearing, the Sackets filed (through the Pacific Legal Foundation) a petition in federal district court asserting that EPA's Administrative Compliance Order was subject to judicial review and EPA's characterization of their property as having wetlands was erroneous. Denying them of this judicial review, the Sackets argued was a violation of their constitutional right to due process.
The district court avoided the legal questions and instead dismissed the petition for lack of subject matter jurisdiction stating the Administrative Compliance Order did not constitute a final agency action subject to judicial review. Upon appeal, the Ninth Circuit affirmed siding with many other circuits that had made the same decision on this issue.
Despite requesting the parties to brief the due process issue, the Supreme Court, in a rather terse and narrow opinion written by Justice Scalia, overturned the decision strictly on administrative law grounds. Specifically, Justice Scalia focused on the legal question of whether the Administrative Compliance Order was in fact a final agency action, which of course, the Court unanimously decided it was.
Being that this was the first wetlands case to cross the Supreme Court in over five years, the case has seen the hype and attention the Sackets had hoped they deserved. If you believe the hype, you'd say that the Sackets kicked this one out of the ball field, and they really showed the EPA. Truth is, really all the Sackets received from the Supreme Court was a ticket to start over and actually argue the factual issue in court; a task they initiated over five years ago.
Unlike the SWANCC v. Army Corps of Engineers (2001) case that eliminated the "Migratory Bird connection" to include isolated wetlands under federal jurisdiction, or the Ripanos v. United States (2006) case that further defined jurisdictional wetlands as only those immediately adjacent to a navigable, waterway, the Sackets' victory merely answered an administrative law question that was made ambiguous in the Clean Water Act. A question that for all intents and purposes is bound to give EPA a huge headache with regard to its enforcement procedures. That is because a majority of the EPA's enforcement procedures take the form of Administrative Compliance Orders instead of enforcement hearings or litigation proceedings, which can be more costly, time-consuming, and resource intensive.
My environmentalist side wants to say that Mr. Sacket, as an excavation contractor, should have known better and have sought proper authorizations before proceeding to fill his property. That said, I know that the facts are far more complicated than that and that this is less a case about a property owner avoiding hefty permitting fees and major delays and more about keeping the EPA in check. The Clean Water Act affords the EPA other options to handle enforcement matters, yet it choses to take this route, which Justice Scalia very poignantly describes as "strong-arming [ ] regulated parties into 'voluntary compliance' without the opportunity for judicial review." Something the Court stated the Clean Water Act was not "uniquely designed to enable."
The Supreme Court had the opportunity here with Justice Scalia to author a colorful opinion going at great lengths about due process and the lack of unambiguous definitions of jurisdictional wetlands in the regulations. Instead, I find myself actually agreeing with Justice Scalia, a position I have to admit is not common for me, that the issue before the court was narrow and the opinion was decidedly kept the same.
There is no doubt the reprecussions of this decision will be felt throughout the enforcement section of the EPA, and it may also be possible that wetland protection could be somewhat hindered as well. Overall though, it appears the Supreme Court has rightly reigned in an administrative procedure that had gone somewhat amuck and was beginning to threaten the constitutional rights of regulated parties.
