Supreme Court: Property Owners Can Challenge EPA

By Steven Chen and Nina Totenberg,
Source: NPR
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The issue is almost perfectly calibrated to divide Americans, including environmentalists.

Mike and Chantell Sackett of Priest Lake, Idaho, pose for a photo in front of the Supreme Court in Washington on Oct. 14, 2011. The court ruled unanimously Wednesday that property owners have a right to prompt review by a judge of an important tool used by the Environmental Protection Agency to address water pollution.Haraz N. Ghanbari/AP

Mike and Chantell Sackett of Priest Lake, Idaho, pose for a photo in front of the Supreme Court in Washington on Oct. 14, 2011. The court ruled unanimously Wednesday that property owners have a right to prompt review by a judge of an important tool used by the Environmental Protection Agency to address water pollution.

The U.S. Supreme Court has ruled unanimously in favor of an Idaho couple who were prevented from building their dream home after the Environmental Protection Agency barred them from building on their land. The agency claimed the property was protected wetlands under the federal Clean Water Act.

The ruling gives property owners the right to challenge an EPA compliance order from the time it is issued, rather than waiting for the agency to begin enforcement actions.

The decision comes in the case of Chantell and Mike Sackett, who purchased two-thirds of an acre of land near the shore of Priest Lake, Idaho. In 2007, they broke ground on a planned three-bedroom house, but three days later, EPA officials arrived and asked to see their permit for filling in wetlands. The couple, who had only building permits, said they had no idea that they needed a permit from the EPA because there were other houses nearby.

Several months later, the EPA issued an administrative compliance order directing the couple to remove the fill and restore the wetlands. Failure to comply could lead to fines of up to $75,000 per day.

The couple argued that their property is not wetlands, and thus they did not need to get a permit to begin construction. The problem, they said, was that there was no reasonable way to challenge the wetlands designation in court because the government had not yet sought enforcement of its order.

The government argued that allowing lawsuits challenging compliance orders, which it views as a warning, would undermine the agency’s ability to quickly deal with water pollution under the Clean Water Act. But Justice Antonin Scalia, writing for the court, rejected the government’s argument, saying that the Clean Water Act was not “uniquely designed” to allow the EPA to strong-arm property owners into compliance.

The court said that such orders would still be useful to quickly stop environmental damage even if they could be challenged in court.

“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 Scalia said.

Justice Samuel Alito wrote a separate opinion saying that it was “unthinkable” that in a nation that “values due process,” the Sacketts and other property owners could not sue the EPA. He called the Clean Water Act “notoriously unclear” and urged Congress or the EPA to “provide a reasonably clear rule regarding the reach” of the law.

Business groups from the mining, oil, utilities, manufacturing and real estate industries supported the Sacketts in urging the court to make it easier to challenge EPA compliance orders. But even environmental groups said they did not view the court’s decision as a major obstacle to enforcement.

Nina Mendelson, a law professor at the University of Michigan Law School, warns, however, that such challenges could allow corporations to tie up the EPA in litigation.

“Factory farm lagoons that are overflowing into a river or tributary, the malfunctioning of a sewage treatment plant, a mine opening into a river — all of these are subject to the Clean Water Act,” Mendelson says. “If the EPA were to issue a compliance order in these settings, it would likely get bogged down in court.”

But Damien Schiff, the lawyer for the Sacketts, says the Clean Water Act makes “many, many tools available to the EPA to make sure that where there is a serious environmental problem … it can be stopped expeditiously.” He said, for example, that the law has “a separate statutory provision that authorizes EPA to go into court immediately to obtain a temporary restraining order … [to stop violations] posing as a threat to human health or welfare or to the environment.”

For the Sacketts, the court’s decision is Step 1 in what could be a long process. The decision did not give them clearance to build their home, but they now have the chance to bring their case before a judge and argue that their property is not wetlands.

“We are prepared to go forward,” Mike Sackett said after the ruling Wednesday. “We didn’t come this far now not to be able to build our house.”