END THE EPA
Supreme Court Ruling: Victory for Property Owners, Defeat for EPA How long would your bank account hold out if an agency of the federal government were fining you $75,000 per day? A couple of hours, maybe — or a few minutes? Not many homeowners could handle that kind of crushing financial blow. Even a Bill Gates, a Warren Buffett, or a George Soros might blanch at such astronomical fines. But that was the potential ...more »
Supreme Court Ruling: Victory for Property Owners, Defeat for EPA
How long would your bank account hold out if an agency of the federal government were fining you $75,000 per day? A couple of hours, maybe — or a few minutes? Not many homeowners could handle that kind of crushing financial blow. Even a Bill Gates, a Warren Buffett, or a George Soros might blanch at such astronomical fines.
But that was the potential cost facing Idaho couple Mike and Chantelle Sackett (left), who ran into the iron fist of the Environmental Protection Agency (EPA) when they began building their home in 2007 on a two-thirds acre parcel in a residential neighborhood of Priest Lake. Like their neighbors who had already built homes next door, the Sacketts got their permits from the county and began laying gravel and preparing the ground for building. That’s when the EPA came in and, without hearings or notice, declared that the property is “wetlands” and ordered the Sacketts to restore it to the EPA bureaucracy’s satisfaction.
The Sacketts, having good reasons to believe their property is not a wetlands, were determined to contest the EPA order. However, the EPA denied their request for a hearing. They sought judicial relief, but the U.S. Ninth Circuit Court of Appeals sided with the EPA, ruling that the Sacketts had no right to immediate judicial review of the matter. The Ninth Circuit held that the couple would first have to go through the EPA’s years-long wetlands permit process, which would end up costing the property owners many times the value of their land!
Represented by attorneys with the Pacific Legal Foundation, the Sacketts took their case to the Supreme Court of the United States. As The New American reported earlier, in January, the EPA bureaucrats faced an aggressive grilling from Supreme Court justices, who criticized the agency’s “high-handedness” and regulatory overreach.
On March 21, Justice Antonin Scalia delivered the Court’s unanimous opinion, which has been hailed as a historic victory for property owners and a stinging rebuke to federal regulators. The Court’s decision does not end the EPA “wetlands” nightmare for the Sacketts; it merely rules that the EPA goblin may not continue terrorizing them with threats of financial ruin while denying the Sacketts their “due process” right to challenge the agency’s compliance order in court.
The Sacketts had attempted to use provisions of the Administrative Procedures Act (APA) to challenge the EPA’s wetlands designation. They hired scientists who confirmed that their property in an already-developed neighborhood is not a wetland. But they could not get their day in court because the federal government claimed that the Clean Water Act exempted the EPA from the APA’s judicial review process.
Justice Scalia, writing for the Court, slapped down that argument, stating, “[T]here is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.” In the closing paragraph of his 10-page opinion, Justice Scalia writes:
Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution. Compliance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true — but it will be true for all agency actions subjected to judicial review. The APA's presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into "voluntary compliance" without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA's jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.
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