March 22, 2012

Sackett reaction: Enviros continue to distort landmark PLF victory

By Sackett reaction: Enviros continue to distort landmark PLF victory

Yesterday we saw how the extreme environmental community is having a difficult time figuring out how to spin PLF’s victory in Sackett v. EPA.   Some of them claim that the decision is no big deal (ignoring the decades of circuit law precedent that was overturned by the Supreme Court’s common sense decision), under the false premise that water pollution was a significant issue in Sackett.  They they then breathe an gratuitous sigh of relief because the Supreme Court “did not give anyone a license to pollute.”

But others try to scare the public into thinking that the decision does authorize water pollution to continue unabated, no matter how unjustified such a take on Sackett might be.  University of Michigan law professor Nina Mendelson took this latter approach in an NPR article, and she has elaborated on her thoughts at the CPRBlog.

According to Prof. Mendelson:

In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts’ constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were entitled to judicial review of EPA’s order as soon as EPA issued it. . . .

But the decision’s effect may go significantly beyond wetlands. It also may interfere with the EPA’s ability to respond quickly to protect the nation’s waterways from all kinds of threats, including threats we can all agree are urgent. These might include overflowing lagoons from concentrated animal feeding operations (CAFOs), malfunctioning sewage treatment plants, or the discharge of high volumes of pollutants from a factory outfall or a mine into a river. EPA is likely to be stuck in litigation over compliance orders not only in wetlands cases, but in these cases of obviously urgent threats to water quality. It may use compliance orders less often and when it does use them, it may take much longer for the orders to go into effect.

This analysis is, quite simply, rubbish.  As an initial matter, while Prof. Mendelson correctly recognizes that the Sacketts won on statutory grounds, she is completely wrong in her contention that the Supreme Court rejected the Sacketts’ and PLF’s constitutional due process argument.  In fact, having raised the due process issue sua sponte in granting certiorari, the Supreme Court refrained from getting into due process in the decision.  That is in no way a rejection; it’s a standard discretionary move by the Court to not address an issue where relief has already been granted.

As for Prof. Mendelson’s misplaced claim that waterway protection will be inhibited, there’s a reason the Supreme Court’s decision in favor of the Sacketts and PLF was unanimous. Contrary to Prof. Mendelson’s breathless claims, all nine justices recognized that the decision would have no effect on the EPA’s enforcement abilities  Prof. Mendelson completely ignores the reality that the Environmental Protection Agency has ample means to protect our nation’s waterways, including in emergency situations.  Indeed, increased threats to water quality due to giving landowners the ability to challenge compliance orders in court is such a non-issue that the Justices barely paid attention to it in yesterday’s decision.

At bottom, Prof. Mendelson and the rest of the environmental community’s scare tactics are simply an attempt to gloss over the outrageous behavior by EPA.  If EPA claims your property is wetlands and you have good reason to believe that’s wrong, you deserve to be able to challenge EPA before a neutral decision-maker, especially when EPA orders you to cease use of your property and pay exorbitant fines and penalties.

Fortunately, the Supreme Court has recognized the unfairness of depriving people like the Sacketts of the right to judicial review, and it would be nice if Prof. Mendelson et al. acknowledged the decision for what it is instead of resorting to unfounded fear and loathing.

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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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