March 6, 2015

Greenwire covers important wetlands case at Supreme Court

By Mark Miller Senior Attorney

Greenwire reporter Jeremy P. Jacobs reported yesterday on Pacific Legal Foundation‘s Kent Recycling Services LLC v. Army Corps of Engineers case pending before the Supreme Court. The case presents the Court with the opportunity to hold that a property owner may immediately challenge in federal court the federal government’s conclusion that a piece of property includes wetlands within the meaning of the Clean Water Act.

The Greenwire report summarizes the case well; here’s a portion of the story:

In Kent Recycling Services LLC v. Army Corps of Engineers, the justices are presented with the question of whether a corps “jurisdictional determination” for a wetland qualifies for judicial review.

Business and farm groups, property right activists, and Louisiana Sen. David Vitter — who was formerly the top Republican on the Senate Environment and Public Works Committee — have all urged the court to take up the case.

They contend that a corps decision that property is jurisdictional, and therefore qualifies for Clean Water Act protections, places significant burdens on its owner — including having to apply for costly permits or being subjected to penalties to the tune of thousands of dollars per day.

“These are not legitimate options,” the petitioner, Kent Recycling, said in court documents.

The case presents the high court the opportunity to go one step further than it did in a 2012 Supreme Court Clean Water Act case, Sackett v. U.S. EPA. Then, the justices unanimously ruled that an EPA compliance order is a final agency action that can be challenged in court.

If the court does review the case, it could have significant implications for the Obama administration’s proposed Waters of the United States jurisdictional rule, which is set to be finalized this year.

Pacific Legal Foundation won the Sackett case to which the Greenwire report refers just a few years ago. If the courts can review a compliance order, then logically the courts should allow a property owner to challenge a jurisdictional determination, as well. PLF is optimistic that the Court may take this opportunity to go that one step further.

The justices previously intended to consider the case for full review today. But, the Court has just announced that the justices will take it up an unknown date in the future, instead. The Court did not explain the reason for the change.

While property owners across the country wait for the Court’s decision, please read the full Greenwire story about the case here, and read other PLF documents about the case, including the briefs, at this link.

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