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Intro: "The Supreme Court on Wednesday unanimously ruled for an Idaho couple who have been in a four-year battle with the Environmental Protection Agency over the government's claim that the land on which they plan to build a home contains sensitive wetlands. ... The decision, although narrow, was seen as a victory for developers, corporations, utilities, libertarians and others who have said the EPA's actions were an abuse of power."

Supreme Court sides with Idaho couple in challenge to EPA order. (photo: Legal Geekery)
Supreme Court sides with Idaho couple in challenge to EPA order. (photo: Legal Geekery)



Supreme Court Allows Idaho Couple to Challenge EPA on Wetlands Ruling

By Robert Barnes and Juliet Eilperin, The Washington Post

23 March 12

 

he Supreme Court on Wednesday unanimously ruled for an Idaho couple who have been in a four-year battle with the Environmental Protection Agency over the government's claim that the land on which they plan to build a home contains sensitive wetlands.

The decision allows Mike and Chantell Sackett to go to court to challenge the agency's order. More broadly, it gives landowners and businesses a tool to fight the approximately 1,500 administrative compliance orders that the EPA issues each year to try to force an immediate halt to what the agency considers environmental damage.

The government had taken the position that such orders were not open to judicial review until the agency took final action.

But the court disagreed.

"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 review - even judicial review of the question [of] whether the regulated party is within the EPA's jurisdiction," Justice Antonin Scalia wrote.

The decision, although narrow, was seen as a victory for developers, corporations, utilities, libertarians and others who have said the EPA's actions were an abuse of power.

"The justices have made it clear that EPA bureaucrats are answerable to the law and the courts, just like the rest of us," said Damien M. Schiff of the Pacific Legal Foundation, which represented the Sacketts. "EPA can't try to micromanage people and their property - it can't order property owners to dance like marionettes - while denying them any meaningful right to appeal to the courts."

Environmentalists took the view that the ruling was narrow and did not contest the EPA's ability to issue compliance orders. "The court did not adopt any of the radical ideas advanced by industry and its allies that could have severely hampered public health and environmental protections," said Jon Devine, a senior attorney for the Natural Resources Defense Council.

The Sacketts want to build a home on a 0.63-acre lot that they bought for $23,000 near pristine Priest Lake in the Idaho panhandle. But after three days in which the couple brought in fill dirt and prepared for construction in 2007, officials from the EPA and the U.S. Army Corps of Engineers ordered the activity stopped and said they suspected that the land contained wetlands.

Months later, the agency sent the Sacketts a compliance order that said the lot must be restored as wetlands before the couple could apply for a building permit. The government acknowledged that fines for failure to comply with the order could be as much as $75,000 a day.

The question for the justices was whether the couple had a right at that point to appear before a judge and contest the agency's contention that their land contained wetlands subject to the Clean Water Act.

Scalia joked in summarizing the decision from the bench that the Sacketts were surprised by the EPA's decision that their land contained "waters of the United States," since they had "never seen a ship or other vessel cross their yard."

Lower courts agreed with the government that the agency's compliance orders are not subject to judicial review. They said that because the EPA must prove a violation to a judge for the court to levy fines, that is the proper time for the courts to get involved.

The government has said that the EPA's power to issue compliance orders, with their threats of huge fines, is a way to quickly move to stop environmental damage and that allowing polluters to go to court would tie up the agency in litigation.

The court's opinion said that power could still be used. "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," Scalia wrote.

Even though the decision means only that the Sacketts may go to court to challenge the EPA's jurisdiction over their property, Mike Sackett said he felt like "the Supreme Court came to our rescue."

The court's narrow decision comes as the White House is weighing whether to issue a slew of environmental regulations before the fall election. Some critics say they believe that the EPA will no longer push the limits of its authority.

Ashley Lyon McDonald, deputy environmental counsel for the National Cattlemen's Beef Association, called the ruling "a win for private property owners" that should serve as a cautionary lesson for EPA officials.

She added, however, that her group and others were hoping that the court would define precisely what constitutes a wetland, a definition that has been muddied by Supreme Court decisions in 2001 and 2006.

Justice Samuel A. Alito Jr., in a concurring opinion, said such definitions are needed.

"The reach of the Clean Water Act is notoriously unclear," Alito wrote. "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, 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 has drafted wetlands guidance and last month sent the proposal to the Office of Management and Budget. That proposal would limit the amount of pollution that could be put into wetlands and streams.

Jan Goldman-Carter, senior manager for wetlands and water resources at the National Wildlife Federation, an advocacy group, said she remains confident that the administration will finalize new wetlands rules this year.

"They see the need to clarify this guidance," she said.

The case is Sackett v. EPA.

 

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+10 # RnR 2012-03-23 09:38
How convenient. I think the Sacketts' deserve a thorough background investigation. Remember, the destroyers have long term goals, plans and serious resources.
 
 
+12 # angelfish 2012-03-23 10:04
Just another move by this ReTHUGlican Court to Allow Corporations to Pollute, Steal, Lie and Cheat their way into our Protected land areas. Sickening and Disgraceful!
 
 
+4 # MidwestTom 2012-03-23 10:28
I am sure that most of the contributors to this site have not had the experience of encountering the EPA on a one to one basis. Our head engineer has a small 40 acre farm with a small 2 foot wide ditch flowing through it. Last year he noticed a young girl walking in the field where the ditch is and where he kept his three horses. He approached her and asked what she was doing on his property. She immediately became hostile, and told him that she was with the EPA, and she therefore the right to go anywhere on his farm she wanted to. He then called the regional office, and was told that she was wrong, however, when he reported this to her she threatened to have him arrested for interfering with her inspection. At which point he recalled the office and put the supervisor on his speaker phone so she could hear that she had no right to be there. The goals of the EPA are commendable, but many of their field people are so overbearing that they instill hatred wherever they go.
 
 
+2 # KittatinyHawk 2012-03-23 21:47
She would have been fired. First the EPA must notify you as does all State, County,Federal and locals before coming on your property.
He had the right to know...it is a law to see any complaints filed, or reasons to look into water/ditch.
Not buying the bs, Engineers, yup, people who want tos ee the Earth covered with Sewage Plants, Developments and Industrial Parks not to mention Malls...Enginee rs do not care about anything but their pocket.
He probably had letters about pollution and ignored
 
 
+11 # Gary Neu 2012-03-23 11:32
A wise society would keep wetlands and land,say a 100 yards perimeter, around all open water free from development. The natural environment purifies & stores water & we need clean water.

Our mainstream guiding cultural ideology though focuses on the selfish pursuit of the three P's: pleasure, power & profit. It is one of the weaknesses of capitalism & left unchecked it will destroy us. Institutions like the EPA are part of our checks & balances system.
Healthly democracy is part of healthy capitalism.

If our guiding cultural ideology valued democracy & its 'common good' over capitalism's selfish interests, developers, as well as industry, would be held accountable for their externalities; the damages they cause by their actions that the public has to pay for.

Destroying wetlands increases water pollution by decreasing natural filtration & the destruction decreases available water by reducing the Earth's ability to absorb water.

If the values that are guiding this country allow the Sackett's to build, then we must also hold them accountable for their actions by billing them for the externalities they willing cause.

This would be say an additional $100,000 for the right to build. They need to pay for loss of natural flood control, water absorption & filtration.

The surcharge helps neutralize the damage to the 'common good' caused by the Sackett's pursuit of self-interest.
 
 
+6 # chrisconnolly 2012-03-23 12:15
If only we did give a monetary value to the benefits and services wetlands give us. They do provide us with free water filtration, free flood control, and habitat for many species including migratory birds. We have a 200 year history of draining and filling all 'swamp lands' always deemed useless. To continue to believe that incremental destruction of these intrinsically valuable services will hurt nothing is blind ignorance.
 
 
+6 # reiverpacific 2012-03-23 14:39
Well, what do you expect from a Bush appointed and corrupt Supremely biased so-called court with it's own agenda?
I have a neighbor who owns several acres of wetlands adjoining my 2.5 acre place where we enjoy the daily company of Bald Eagles, Red-Tailed Hawks, Ospreys, Herons, and all kinds of critters from Beavers, Raccoons, Otters and the occasional Fox, and he is an environmental disaster area just dying to develop it (Over my dead body! At least the Oregon Bureau of Lands has a large file on him).
If he gets to hear about this, he'll be chuckling and rubbin' his hands.
I am an out of work Architect and could surely use a development project to design but I'll fight him tooth and nail, as will my contractor neighbors on the other side if he ever gets serious again (we've already stopped him once).
On the other hand I had a spiteful and jealous engineer and member of a planning commission in our area stop the construction of a very environmentally enhancing development for a while after we'd done an environmental impact study because he saw some "wetlands" (some fronds at the end of a small culvert which he'd already planned to save) on the site. So I've had it comin' and goin'.
Where are the EPA's big (but much-reduced by Dimwits Bush) big guns when we actually need them?
Now we've got Ob' doing a turncoat act on the Southern leg of the XL Pipeline.
Wonder what they'll all do when they finally make the planet uninhabitable?
 
 
+1 # KittatinyHawk 2012-03-23 21:51
Got lots of the Pretend to care but I am going to dump and develop. I put up with the wetlands, after all they were designed for the Planet's maintenance.
To everything there is a purpose until man and his bulldozer shows up
 
 
+2 # tomo 2012-03-23 18:33
Great to see the happy face of Scalia up there! Here's the guy who brought us G.W., the invasion and smashing of the nation of Iraq, and the declaration that corporations can dominate political campaigns in America so far out as the eye can see. He has--with a little help from his friends--done all he can to destroy democracy in America while promoting a man whose foreign policy is beyond all resemblance to anything humane or defensible. Why not then destroy the local landscape, too? I can hear him now: "Wetlands are not people; only corporations are people!"

As one trained in Catholic schools taught by Jesuits to think in terms of the common good, I have to wonder what has happened to Catholic schools that they could give us the likes of Scalia, Thomas, Roberts, and Alito. Until it can start turning out a better product, let me suggest a nationwide moratorium on the funding of Catholic education.
 
 
+3 # KittatinyHawk 2012-03-23 21:52
There is Santorum tooo. Church has certainly gone bottoms up when it comes to saving souls and delivering the word of God...
 
 
+3 # Majikman 2012-03-23 20:12
Several years ago I read a report by biologists studying alligators in the Fl. Everglades. The mystery was that an inordinate number of females were being hatched, that those eggs that should have been male were morphing into females in the shell, and that most of the males that were actually hatched had infantile sex organs. They eventually solved the riddle and discovered that the cause was runoff from dairy farms surrounding the Everglades. All those hormones that were being injected into the cows were seeping into the underground water system and into the Everglades.
These people not only exist in their own crazy bubble politically, but also think the entire planet is subject to their irrational demands and constructs. They are dangerous and a hazard to our health.
 
 
+4 # KittatinyHawk 2012-03-23 21:42
If the Couple were fighting this for a home...then why are Corporations, Utilities and Contractors involved...gues s pockets being filled again.
Scalia cares about wetlands? Joke.
 
 
0 # Merschrod 2012-03-24 20:42
Let's not run wild on this theme - Why would you support an agency that can simply make you cease and desist, and restore an area to its prior state all without due process or right of appeal?

Weren't the property owners innocent until proven guilty of violating the regulations?
 

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