Defending property from the EPA

A unanimous U.S. Supreme Court decision last month may affect millions of Americans while providing red meat for politicians running for everything from president to county assessor -- though the ruling may have become somewhat lost for the moment amid all the hoopla surrounding the challenge to healthcare reform. The decision came in a David versus Goliath setting that tends to capture the imagination of those who consider the Environmental Protection Agency and its rules and regulations an Orwellian monster. Specifically, the justices ruled homeowners -- and businesses -- may sue immediately when they think the Environmental Protection Agency has treated them unfairly. The case involves Michael and Chantell Sackett, an Idaho couple who own a 2/3-acre residential lot in Bonner County just north of Priest Lake, but separated from the lake by several lots containing permanent structures. Before building their "dream house," the Sacketts filled in part of their lot with dirt and rock. Some months later, they received an EPA compliance order saying there were "wetlands" on their property that connected with the lake. The lake in turn was considered "navigable" by the EPA, making it a navigable water of the United States. Filling in the wetland was causing pollution to enter the lake. The Clean Water Act bans "the discharge of any pollutant by any person," without a permit, into "navigable waters." The compliance order told the Sacketts to restore the land along the lines of an EPA work plan. The couple faced some serious fines. Under a federal law, a civil penalty for non-compliance may not exceed $37,500 "per day for each violation." The government contends that the amount doubles to $75,000 when the EPA prevails in a civil case against a person or business who has been issued a compliance order but has failed to comply. The Sacketts filed their own suit against the EPA under the federal Administrative Procedure Act, saying their Fifth Amendment due process rights were being violated. A federal judge dismissed their suit for lack of jurisdiction -- no fines or penalties had yet been levied --- and a federal appeals court agreed. The Supreme Court reversed. Writing for the whole court, Justice Antonin Scalia said the Clean Water Act is not a statute that "preclude[s] judicial review" under the Administrative Procedure Act. News stories about the ruling pretty much struck the David-Goliath theme. The Wall Street Journal said the high court "curbed the government's power to enforce the Clean Water Act," adding environmental groups "had warned that siding with the Sacketts would undermine the government's ability to respond rapidly to water-quality threats." The Journal quoted Pacific Legal Foundation lawyer Damien Schiff, who argued the Sacketts' case before the Supreme Court. Schiff said the decision meant that the EPA "can't repeal the Sacketts' fundamental right to their day in court." The Los Angeles Times said the ruling "strengthened the rights of property owners who are confronted by federal environmental regulators, ruling ... they are entitled to a hearing to challenge the government's threats to fine them for building on their own land." Under the headline "'Little guy' wins high court fight over property rights," CNN.com called the ruling "an important property rights defeat for the Obama administration." Lyle Denniston, the dean emeritus of the court's press corps, observed the ruling "emerged at a time when the EPA is under heavy political protest, among Republicans in Congress and conservative voters, who regard the EPA as an example of government grown too large with too much power to intrude into individuals' private lives." A couple of days before the decision was handed down, Republican presidential front-runner Mitt Romney tried to associate himself with the little guys in the case. In remarks at the University of Chicago, Romney "offered a vision of what he called 'economic freedom,' arguing for less regulation and less government intervention, and assailed the Obama administration, arguing that its 'assault on freedom could damage our economy and the well-being of American families for decades to come,'" The New York Times reported. "This administration's regulations are even invading the freedom of everyday Americans," Romney said before talking about the Sacketts. "An unelected government bureaucrat robbed them of their freedom," Romney said of the couple. "They were given no recourse, no remedy. They could do what the EPA wanted, or they could risk millions of dollars in fines." Hilariously, the Times pointed out that Romney "did not mention the Sacketts encountered their run-in with the EPA under President George W. Bush's administration, not under Obama. "A spokeswoman for Mr. Romney's campaign did not respond to questions about the discrepancy," the Times said. Getting back to the decision itself, the feisty Scalia used language in the opinion that suggests he might have used a much stronger tone had he not wanted the ruling to be unanimous. He specifically rejected the "principle that efficiency of regulation conquers all." Scalia stressed the ruling does not address the merits of the Sacketts' case, only whether they could go to court. "The government noted Congress passed the Clean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution," Scalia said. "Compliance orders ... 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 EPA'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." Justice Samuel Alito, who joined Scalia's opinion, was even more vehement in a separate opinion concurring in the judgment. "The position taken in this case by the federal government -- a position that the court now squarely rejects -- would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency employees," Alito said. "The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act," he said, "and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property." He noted the heavy fines involved if "the owners do not do the EPA's bidding." If owners want their day in court, they would have to wait until the EPA sues them under the government's reasoning "and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. "In a nation that values due process, not to mention private property, such treatment is unthinkable." The Supreme Court's ruling provides some relief, he added, "but the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA's tune. "Real relief requires Congress to do what it should have done in the first place: Provide a reasonably clear rule regarding the reach of the Clean Water Act."