What does Hawkes mean for landowners?

June 14, 2016 | By REED HOPPER

When we win a big case, like the recent unanimous decisions at the U.S. Supreme Court in Hawkes and Kent Recycling, which held that landowners have the right to challenge Army Corps and EPA Jurisdictional Determinations in court, it’s natural to ask what effect the decision will have in the “real world.”  When we won the 2006 Rapanos case, wherein the High Court limited the scope of the Clean Water Act, the Corps and EPA immediately backed-off hundreds of enforcement actions and completely revised their procedures for determining Jurisdictional Determinations.  Hawkes and Kent Recycling will also have “real world” impacts for landowners. Here are just a few:

  1. These decisions will likely keep the Corps and EPA more honest when they issue Jurisdictional Determinations knowing they could be sued by the recipient for overreaching. These cases will have an actual deterrent effect
  2. Although the cost of litigation may be high, the ability of landowners to sue will give them more leverage in negotiating with the Corps and EPA over jurisdictional questions. See our post on how our Sackett case saved Andy Johnson here.
  3. As with any type of judicial review, only those who have an economic incentive and are confident the agency has exceeded its authority will be inclined to bring an action in court. This will generally involve those cases at the fringe where it is clear the agency is overreaching.
  4. While not everyone will want or be able to go to court to challenge an erroneous Jurisdictional Determination, these cases give landowners more rights to protect their property interests than they have had for the past 40+ years during which the Corps and EPA could assert control over any parcel of land without ever being held accountable.
  5. Justices Kennedy, Alito, and Thomas took the opportunity in Hawkes to express their view that the Clean Water Act is overly broad and uncertain in its reach which may raise due process concerns if these agencies don’t provide definitive and binding Jurisdictional Determinations to landowners.  This may signal a willingness on the court to consider constitutional challenges to the Clean Water Act.
  6. And, as we explain here, the Hawkes and Kent Recycling decisions do not bode well for the Corps and EPA’s new WOTUS rule expanding federal authority over “waters of the United States.”