U.S. Supreme Court Slaps Down EPA for "Strong Arming" and Denial of Due Process to Citizens It Regulates in a Decision Under the Clean Water Act

Michael and Chantell Sackett were the victims of EPA’s “strong arming” according to Justice Scalia’s scathing opinion in the case of Sackett v.  Environmental Protection Agency, 566 U.S._______ (2012)(Supreme Court Case No. 10-162). All the Sacketts wanted to do was build a home near, but not adjacent, to a lake. Their 2/3 acre lot is located in Bonner County, Idaho, and others had already built structures closer to the lake. Having received their local building approval, they began to fill part of their lot with dirt and rock. Then the EPA hammer descended.

EPA issued a “compliance order,” declaring the lot to be a “wetlands” under the Clean Water Act’s definition of “waters of the United States” and ordered the Sackett's to cease their unlawful filling and “discharge of pollutants” into this wetlands and to restore the property to its former condition. EPA threatened $75,000 per day penalties unless the Sackett's “voluntarily” complied with the order.

Believing their property was not a regulated “wetlands,” the Sacketts requested a hearing from the Agency and their request was denied. Thereupon, the Sacketts sought relief in the Federal District Court under the provisions of the Administrative Procedures Act (5 U.S.C. §500 et seq.). Both the District Court and Ninth Circuit Court of Appeals agreed with the Agency that there was no subject matter jurisdiction and that the Clean Water Act precluded pre-enforcement review of such orders.

The unanimous decision of the Supreme Court disagreed in strongly worded and critical opinions (Justices Ginsburg and Alito wrote concurring opinions). Without determining whether the lot was in a wetlands, the Court found that the Sackett’s had no other adequate remedy at law for judicial review, and the Court rejected the Governments arguments, with Justice Scalia finding that the Act did not bar such review, “And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review…”

Justice Alito concurred, but also noted: “The position taken in this case by the Federal Government—a position that the Court squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees”. In addition, the Justice noted that if the Sackett’s wanted their day in court, the Agency’s position of “that is just too bad” was not proper or legal. He said: “In a nation that values due process, not to mention property [rights], such treatment is unthinkable” and would cause them to face such “draconian penalties.”

Justice Alito went further, however, and criticized Congress for having “…done nothing to resolve this critical ambiguity (definition of “wetlands”) and he urged the Congress to cure the problem since only Congressional “…clarification of the reach of the Clean Water Act can rectify the underlying problem.”

Copies of the opinion can be accessed here.

Categories: Land Use & Zoning (Public)Environmental/SustainabilityLitigationGovernment AffairsAppellate Law & PracticeFederal LawLand Use & Zoning (Private)Federal CourtsConstitutional LawAdministrative Law
Tags: Governmental LitigationSpecial Counsel to Local GovernmentMitchell A. BiermanJamie A. ColeChad S. FriedmanEdward G. GuedesMichael S. PopokClifford A. SchulmanJoseph H. SerotaSusan L. TrevarthenRichard Jay WeissDavid M. WolpinFort Lauderdale Governmental Affairs AttorneysMiami Governmental Affairs AttorneysSouth Florida Governmental Affairs AttorneysFort Lauderdale Appellate Law AttorneysMiami Appellate Law AttorneysSouth Florida Appellate Law AttorneysFort Lauderdale LitigatorsMiami LitigatorsFort Lauderdale Constitutional Law AttorneysMiami Constitutional Law AttorneysSouth Florida Constitutional Law AttorneysFort Lauderdale Environmental Law AttorneysMiami Environmental Law AttorneysSouth Florida Environmental Law Attorneys South Florida LitigatorsUnited States CongressUnited States SenateFlorida Environmental LawFlorida Litigation AttorneysFort Lauderdale Civil Litigation Attorneys
Author(s): Clifford A. Schulman