We now have what I believe is the first law review article on the Sackett case. Appearing in UC Berkeley’s Ecology Law Quarterly and written before the Supreme Court granted review, the article favorable reviews the Ninth Circuit’s decision but suggests that EPA should meet property owners “half way” by offering them some form of administrative process or hearing before issuing a compliance order.
The article’s analysis of the Ninth Circuit’s decision is perfunctory and therefore misses several crucial points. The article contends that the Ninth Circuit correctly divined congressional intent to preclude judicial review of compliance orders, but the article makes only a halfhearted attempt to explain why Congress would have wished to deny people like the Sacketts any chance at meaningful review of a compliance order. Indeed, the article does not address at all the implications of the Ex parte Young doctrine; no attention is given to the fact that, under due process, a person’s right to judicial review cannot be conditioned on running the risk of significant civil or criminal liability, which is precisely what the compliance order demands. Although the article asserts that the Sacketts can always apply for a permit, the article omits any consideration of the fact that (1) the permitting process still does not afford review of the compliance order, and (2) the permitting process costs more than the value of many projects, including the Sacketts’.
Although the article’s proposal for an administrative process is better than the status quo, the article fails to acknowledge that an administrative process would do nothing to cure the serious due process concerns that the compliance order regime presents. Due process has never countenanced a situation where a party can be permanently deprived of life, liberty, or property in a proceeding where the prosecutor and the judge (EPA) are the same.