Sackett v. EPA (10-1062): A short name for a case with rather large implications. The US Supreme Court is currently hearing arguments about the scope and reach of administrative compliance orders in relation to environmental enforcement actions undertaken by EPA. The Court’s final decision could determine whether or not EPA will continue to be the sole arbiter in regards to environmental regulations, or if individuals and corporations running afoul of the Agency’s decisions will have recourse in federal court.
Some background: In 2007, Chantell and Michael Sackett began construction of a three-bedroom house on their 0.63-acre rural property in northern Idaho. The lot sits along the banks of Idaho’s Priest Lake, and before the project could be completed EPA ordered a work stoppage after determining that house was being built on top of protected wetlands. The Sacketts were given a couple of options: restore the property to its previous incarnation (including removal of fill material and a replacement of vegetation that had been cleared), or apply for a permit under the Clean Water Act. Either way, the Sacketts faced fines of up to $32,500 a day if they chose not to comply with EPA’s orders.
At issue here is the Sacketts’ contention that they are entitled to judicial review of EPA’s administrative compliance order. The Sacketts are arguing that EPA does not have the authority to unilaterally enforce its administrative decisions, and that alleged violators should have the right to request a hearing in federal court to review EPA decisions. EPA (along with support from the Obama administration) counters that there are a variety of options for violators—including applying for the appropriate permits—that are more effective than contesting EPA decisions in federal court.
From the Justices initial statements, it seems clear that the central point of contention is whether or not the options offered by EPA are adequate enough to foreclose federal judicial review of the Agency’s decisions. It appears that Justices on both sides of the bench are questioning EPA’s reasoning, which Justice Elana Kagan called “very strange,” asking “why would the presumption of reviewability not apply?”
Justice Stephen Beyer—who is seen by many as a strong supporter of the power of administrative agencies—stated that in this case, the government is “fighting 75 years of practice.”
So what do you think? Does EPA current modus operandi—issuing compliance orders and threatening fines, and “applying so much pressure that those accused typically give in” (www.businessweek.com/news/2012-01-12/clean-water-act-tool-used-by-epa-questioned-at-high-court.html)—trample on the rights of property owners? Does it seem suspicious that large commercial interests—like GE, the American Petroleum Institute, and the Chamber of Commerce—have come out in favor of the Sacketts? And does judicial review offer a more studied approach to environmental enforcement and regulation, or will the Clean Water Act and its ilk fall victim to the politics and policies of judicial intervention?
Upcoming Forester University Webinars
January 26th, 2012
5 Steps to Creating a Successful Public Outreach Campaign
Change starts with people. Whether your focus is stormwater pollution, energy conservation, pavement restoration, or recycling, a successful public outreach campaign resonates with your target audience and leads to long-lasting behavior change. Join Erica Hooper of SGA to explore a proven 5-step approach to crafting a successful outreach campaign based on real-world examples of the good, the bad, and the ugly. Read more…
February 2nd, 2012
Advanced Stormwater Treatment: Dissolved Pollutants
How effective are your stormwater treatments in capturing dissolved loads? With an average of 45% of the phosphorus load and up to 50% of the metal load transported through treatment practices to receiving waters in dissolved form, advanced treatment is imperative. Join Andrew Erickson to explore cost-effective, field-tested methods to capture stormwater dissolved pollutants and optimize stormwater treatment performance. We’ll explore several field applications and data demonstrating significant improvements in dissolved pollutant fraction capture. Read More...