Damien Schiff discusses Sackett v. EPA with Matt Lewis

Last week Pacific Legal Foundation senior attorney Damien Schiff joined the Matt Lewis and the News podcast to talk about our most recent Supreme Court case, Sackett v. EPA, and what it’s like to argue a case at SCOTUS.  

The Sacketts’ legal saga kicked off nearly a decade and a half ago: 

“The case concerns the efforts of our clients Mike and Chantell Sackett to build a family home for themselves in a residential subdivision, near Priest Lake, Idaho. They bought a vacant lot of—about two-thirds of an acre—in 2004 . . . They started construction in April of 2007, only to be stopped a few days later, when officials from the EPA and the Army Corps of Engineers came unannounced onto the property and told the Sacketts’ construction workers that they had to stop working.” 

Why? Because the EPA contends that the Sacketts’ property was a wetland regulated under the Clean Water Act. Of course, common sense and your own eyes would tell you they were wrong:  

“This land, it’s a two-thirds-of-an-acre lot within an existing, largely built-out, residential subdivision. It’s bounded on all sides by other lots or county roads. It has a sewer hookup. It has no surface water connection to the lake or to any other creek or plausible water body. It’s essentially just a normal family home buildable lot, which was fully permitted by the county. So, it is kind of funny to think about the district court and the Ninth Circuit affirmed EPA has authority to regulate this property…” 

The EPA (and even some Justices) argues that because the agency has misinterpreted the Clean Water Act for 50 years—reading it so broadly that it regulates every puddle from California to Maine their interpretation must be correct. Not so: 

“If the statute says ‘X,’ then just because the agencies have been saying ‘Y’ for 50 years doesn’t change the statute to say ‘Y’; it still says ‘X.’ And in that sense, the fact that so many administrations have ignored the text of the statute for a long time is really neither here nor there.”

In our constitutional system of government, Congress has the power to make the laws. Executive agencies like the EPA have only the power that Congress specifically gives them. If Congress wanted to give the EPA the power to regulate every transitionally soggy plot in America, they could have done so in plain language—in fact, they still can:  

“The theme, to some extent, of our argument is that . . . it’s not as if the Court’s decision in this case would at all tie Congress’ hands. Congress is free to amend the statute.”

But the current system leaves landowners with no way to know whether use of their own land will result in massive fines and civil, or even criminal, charges. And fighting the EPA means being dragged into court for years—well over a decade in the Sacketts’ case. Most people would struggle to persevere through, let alone overcome, such odds: 

“Most people wouldn’t be able to litigate this type of case. That’s absolutely true. That’s one reason why PLF has become involved in this area, because otherwise, property owners are just not able to hold their own in litigation against EPA—or, for that matter, any other federal agency. And I think this case is a great example of that. I mean, who other than a billionaire would be able to litigate a case concerning whether you can build a single-family home . . . for 14 years that required two trips to the Supreme Court. I mean, just articulating that way makes it clear that it’s not possible for the vast majority of people.  

“And unfortunately, I think the government knows that, and it gives the government an edge in these cases. Because for them, if they guess wrong, there’s no penalty. But if a property owner guesses wrong, there can be huge penalties, not just in a sense of having to litigate, which is expensive in private practice, but also the actual civil penalties and other harm that EPA can levy against somebody who is held to have violated the act.”

Fourteen years is a long time to fight the government. And only time will tell just what the Justices make of Damien’s arguments. We’re hopeful that the Sacketts will prevail and that the Court will put the EPA in its place. But no matter the outcome, we’re proud to have seen this fight through to the end. 

Damien’s interview originally appeared at Matt Lewis and the News.