Yes, we do want to make it harder for the EPA


Recent articles or quotes about Sackett v. EPA by environmentalists have foretold disaster if the Sacketts win their case against the EPA. To them, landowners should not be able to haul EPA into court when they issue Compliance Orders, no matter how onerous those Orders are, because it would hinder the EPA’s ability, as they see it, to do its job–that is, to “promptly respond” to environmental threats. For example, here’s a quote from one article:

Others, however, believe a victory by the Sacketts could “undermine the government’s ability to promptly respond to environmental threats,” as Nina Mendelson, a University of Michigan law professor told a reporter for the Los Angeles Times.

And here’s what the NRDC’s Larry Levine said:

The big industries supporting the Sacketts’ case want to make it harder for the EPA to take action to promptly correct ongoing environmental harms.

What is interesting about these statements is that neither of the speakers seem to consider seriously the question of whether it should be harder for the government to carry out its regulatory tasks.

After all, our entire Constitution, and the Bill of Rights in particular, was written from the standpoint that it should not be easy for the government to order people around. When it comes to the government exercising power, the Constitution expressly and consciously holds that the interests of liberty should outweigh the interests of government coercion. What Professor Mendelson and the NRDC imply, however, is that these basic principles should not apply to the government in the execution of environmental statutes. Well: why not?

For example, the Fourth Amendment protects individuals from unreasonable searches and seizures of their “persons, houses, papers, and effects,” and that no warrants can be issued without probable cause. The Fifth Amendment provides that “no persons” can be “compelled in any criminal case to be a witness against himself.” These proscriptions against the unfettered exercise of government power are deemed so important to our fundamental liberties that the Supreme Court has gone so far as to requireMiranda” warnings for all criminal defendants before they may be interrogated: as an accused, you don’t even have to talk to the government.

The accepted wisdom, simplified, is that we, as Americans, would prefer to live in a free society, even to the point of letting a known criminal walk free, rather than sacrifice our liberties in our quest for an “efficient,” and no doubt effective, criminal justice system. Why should these considerations not apply in the context of environmental laws? In the delicate balance between liberty and government power, why is fill dirt more threatening to our nation than a criminal running loose?

Interestingly, the very Compliance Order that is at issue in the Sacketts’ case–the Order that NRDC and these other pro-EPA commentators believe that the Sacketts should have no right to contest–includes the following requirement (among many others):

Respondents [Sacketts] shall provide and/or obtain access to the Site and any off-Site areas to which access is necessary to implement this Order; and shall provide access to all records and documentation related to the conditions at the Site and the restoration activities conducted pursuant to this Order. Such access shall be provided to EPA employees and/or their designated representatives, who shall be permitted to move freely at the site and appropriate off-site areas in order to conduct actions that EPA determines to be necessary.

All of this, without any judge-issued warrant based upon probable cause as the Fourth Amendment specifies. The Compliance Order also states:

Please also be aware that failure to comply with the Compliance Order may subject you to civil penalties of up to $32,500 per day [that statutory amount is now $37,500 per day] for each violation, administrative penalties of up to $11,000 per day for each day during which the violation continues [. . .]

It should be noted that, at oral argument and in its brief, the government readily conceded that violation of the conditions spelled out in the Order itself, without any underlying showing that the Sacketts violated the Clean Water Act, can lead to the imposition of these penalties (see argument transcript at 26-30). The government also conceded at oral argument that the Compliance Order demanded that the Sacketts undertake activities–specifically, the planting of vegetation–that are not required by the Clean Water Act (see transcript at 34-35). The government, under questioning, also indicated at oral argument that the EPA does not necessarily have sufficient evidence–that is, evidence that would satisfy a court–that a given property contains jurisdictional wetlands before it issues these types of Compliance Orders (see transcript at 51-53).

In other words, on its very face, the Compliance Order requires the Sacketts to surrender their Fourth Amendment rights, and to undertake unnecessary and costly remedial measures under pain of ruinous civil penalties . . . even though the EPA may be wrong about the nature of the property being regulated. Yet, the government maintains that the Compliance Order still does not trigger any right by the Sacketts to have a court decide whether their property is legitimately subject to EPA regulation.  Is it any wonder, then, that not one of the Justices seemed overly warm toward the government’s position at oral argument? Yet, in the NRDC’s view, this should not present any due process problems: the EPA should be allowed to demand this and people must be required to comply, no questions asked.

It is one thing for the environmental extremist community to complain about what the Sacketts “should’ve or could’ve” done, or even to argue about whether or not the Sackett property contains  wetlands subject to regulation. But to contend that the Sacketts, or anyone, in the face of an EPA Compliance Order, should have no right to contest the Order in court because the right to an impartial hearing before a court will undermine EPA’s power starkly demonstrates just how far they are willing to sacrifice all of our liberties in the name of the environment.