February 14, 2013

NEPA and Sackett v. EPA

By Damien M. Schiff Senior Attorney

Professor Joel Mintz of Nova Southeastern University has published Sackett v. EPA and Judicial Interpretations of Environmental Statutes:  What Role for NEPA?, in a recent issue of Environmental Law.  Professor Mintz’s thesis is that the Supreme Court may have erred in Sackett by not taking into account Section 102 of the National Environmental Policy Act.  Under that Act, the federal government must assess the environmental impact all discretionary projects that may have a significant impact on the environment.  Section 102(1) of NEPA requires that all federal laws and regulations be interpreted to the fullest extent possible in accordance with NEPA’s policies.  Those policies encompass the fostering and promotion of the “general welfare,” as well as the creation and maintenance of conditions “under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

Professor Mintz interprets these and other NEPA policies as requiring the interpretation of laws in a way that will benefit, or at least not unnecessarily harm, the environment.  He reasons that allowing judicial review of EPA compliance orders may well result in environmental harm.  Therefore, the Supreme Court may have erred in failing to interpret the Clean Water Act to preclude such judicial review.

What did Sackett hold?  Two things.  (1) EPA compliance orders under the Clean Water Act are “final agency action.”  (2) The Clean Water Act does not preclude judicial review of such orders under the Administrative Procedure Act.  Professor Mintz’s argument is directed at the Court’s second holding.  He contends that the question of whether the Clean Water Act precludes review is not an easy one, certainly one open to interpretation, and thus, given this interpretive haze, NEPA’s presumption in favor of environmentally friendly interpretations should trump the supposedly countervailing APA presumption in favor of judicial review of final agency action.

Professor Mintz’s argument is certainly novel (neither EPA nor its amici ever relied on it in Sackett) but I don’t find it terribly convincing, for at least two reasons.

First, the argument without warrant assumes that judicial review of compliance orders would be bad for the environment.  The Sacketts, however, reasonably argued to the contrary.  They pointed out, particularly for jurisdictional challenges like theirs, it makes sense for both the regulated party and EPA to want judicial review of whether the agency has authority to regulate the activity in question.  Obviously, if the agency lacks authority, then it’s not only needlessly injuring a property owner, but it’s also wasting its own time and budget on activities beyond its power to regulate, when those resources could be directed to harmful activities that are within its regulatory ambit.

Second, the argument ignores another important presumption that weighs in the Sacketts’ figure, namely, laws should be interpreted in a manner that avoids constitutional problems.  Recall that the Sacketts argued strongly that denial of judicial review would violate their and other compliance order recipients’ due process rights.  The Supreme Court in Sackett avoided this question precisely because it determined that judicial review was available.  This canon of constitutional avoidance would, in my view, trump any countervailing statutory presumption from NEPA.

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Sackett v. Environmental Protection Agency

Chantell and Michael Sackett received a local permit to build a modest three-bedroom home on a half-acre lot in an existing, partially built-out residential subdivision in Priest Lake, Idaho. The home poses no threat to water quality but federal EPA regulators nonetheless declared their property to contain a wetland and demanded they stop all work and restore the lot to its natural condition or pay fines of up to $75,000 per day. When they sued to challenge this order, EPA asserted they had no right to judicial review. The district court and Ninth Circuit Court of Appeals agreed, and tossed their lawsuit out of court. The United States Supreme Court unanimously reversed, ruling that failure to allow the lawsuit violated the Sacketts’ constitutional due process rights. They are now litigating their claims in federal district court in Idaho.

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