Monday, January 9, 2012

Sackett v. EPA: Supreme Court Reviews EPA's Ability to Regulate Wetlands

Today the United States Supreme Court will hear oral argument in Sackett v. EPA, a case that may fundamentally alter the scope of the EPA’s ability to enforce the Clean Water Act. The Sacketts’ counsel describes the issue as the EPA’s overreaching net:
Representative Photo
The Clean Water Act casts a nationwide regulatory net that snags individual citizens doing ordinary, everyday activities. Unlike other environmental statutes, the Clean Water Act is not directed toward a certain field of activity where those involved would be expected to know the applicable regulations. Any citizen engaged in a range of activities may run afoul of the Act. The Clean Water Act’s reach is extremely broad, requiring a permit for the discharge of “pollutants” from a “point source” into the “waters of the United States,” which phrase has been interpreted by regulation to include “wetlands.”

Wetlands are themselves defined by complex criteria—including soil type, vegetation, and hydrology—which defy consistent application and are not apparent to the average citizen. The government finds regulable “wetlands” even on land that appears to be totally dry.  
The plaintiffs were ordinary citizens that purchased a residential lot and began to develop it for construction of their home, only to receive a compliance order from the EPA:
The order charges them with violating the Clean Water Act by placing fill material on their lot. . . First, the order enjoins them from the only authorized use of the property under local law. . . The order, as subsequently amended, requires them, at their own expense, to “remove all unauthorized fill material” and move it to “a location approved by [an] EPA representative,” as well as to prepare for EPA “photographs of [s]ite conditions prior to and following compliance” with the order.
Even after completion of the fill removal, the compliance order continues to control the use of the Sacketts’ property. The order then requires them to plant certain native plants on their property.

Most troubling for the Sacketts, though, is that failure to abide by the order’s terms can result in civil penalties up to $37,500 per day.

The Sacketts were denied judicial review before the local district court, where they alleged the “wetlands” were not under the Clean Water Act’s (and thus the EPA’s) jurisdiction. The district court dismissed complaint, holding that so-called “pre-enforcement” orders by the EPA were not reviewable.  The Sacketts’ only choice was to obey the order and essentially lose all use of their land, or ignore the order and potentially be fined.  Instead, they took their case to the U.S. Supreme Court.

The Sacketts have asserted that the order violates their due process rights.  Various other groups have also filed briefs in the case, including American Farm Bureau the National Association of Manufacturers.  Stay turned for the results.

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