May 10, 2012

Will Sackett v. EPA change the agency's practice?

By Damien M. Schiff Senior Attorney

One would have thought that the Supreme Court’s unanimous decision holding that landowners have a right to sue EPA when the agency issues Clean Water Act compliance orders would have led to some soul-searching at EPA.  At the very least, one might have expected some initial acknowledgement that maybe the enforcement practice should change.

Not so, at least says one senior EPA official who, appearing at a wetlands conference last week, stated that he did not expect to “see dramatic shifts in how administration enforcement authority is used.”  He also noted that the pace of issuance of compliance orders has not changed; in fact, EPA has issued over 2,000 Clean Water Act compliance orders over the past several years.

Not only is EPA’s pooh-poohing of the Sackett decison surprising, it also seems to be somewhat in tension with what the agency argued in litigating the case, particularly that judicial review of compliance orders would pose a significant administrative burden on the agency that would hamper environmental enforcement.  Based on this EPA official’s estimation, it appears that the agency’s fears were overblown.

learn more about

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.

Read more

What to read next