August 6, 2012

Will EPA faithfully implement Sackett v. EPA?

By Damien M. Schiff Senior Attorney

You’ll recall the brouhaha begun a few months ago when a senior EPA official was quoted as saying that it would be “same old, same old” at the agency irrespective of the Supreme Court’s decision authorizing landowners to sue when they receive an EPA compliance order.  Shortly thereafter, over a dozen Senators signed a letter to EPA Administrator Jackson asking her, basically, “what gives?”  Ms. Jackson’s subordinate finally answered that letter earlier this month.  The EPA official explains that EPA fully intends to implement Sackett, to apprise landowners of their right to sue, and to ensure that orders are only issued following an extensive investigation.  Let’s hope that EPA is sincere.  But FWIW, at oral argument in the Supreme Court EPA’s attorney had argued that one reason why the Court should not allow landowners to sue is that the agency’s record is oftentimes not complete when the order is issued and that more time is needed for the agency to complete its investigation and decide whether to bring a civil action.  Obviously, if that practice history is true, it is not quite reconcilable with what EPA is saying now.

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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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