June 12, 2012

Senators want EPA to explain

By Damien M. Schiff Senior Attorney

Recently, EPA has given the impression that it doesn’t believe the 9-0 loss it suffered in Sackett v. EPA should have much influence on how it enforces the Clean Water Act.  Last month, a senior EPA official was quoted publicly as saying as much.  Such apparent indifference is certainly not inconsistent with EPA’s pre-Sackett approach to enforcement (just ask old Al “Crucify ‘Em” Armendariz).  But Congress appears now to have noticed EPA’s posture, and at least some Members don’t like it.

Specifically, late last month over a dozen members of the Senate Committee on Environment and Public Works sent a letter to EPA Administrator Lisa Jackson asking her to explain just what EPA intends to do in a post-Sackett world.  The letter describes the Sacketts’ story and the “terrible choice” that EPA’s compliance order presented to them:  “Give into EPA’s overreaching involvement by foregoing the reasonable use of their private property, or force EPA’s hand by proceeding with development of their property at the risk of bankruptcy or imprisonment.”  The letter goes on to summarize the Supreme Court’s Sackett decision as directing that EPA “should not use its enforcement authority to intimidate citizens into compliance.”  It concludes by asking Ms. Jackson to explain how a business-as-usual approach to enforcement can be reconciled with the Supreme Court’s instructions.

The Sacketts and other members of the regulated public eagerly await Ms. Jackson’s response.


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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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