Opinion

Court says homeowners get a day in court, but they might still lose

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Opinion,Ken Klukowski

A unanimous Supreme Court gave property owners an important—but limited—victory in Sackett v. EPA today, in an opinion that denies the Environmental Protection Agency the unbounded power it was claiming over homeowners.

Michael and Chantell Sackett bought an Idaho lot to build a house in a residential neighborhood. After their construction work began, EPA issued a compliance order claiming the Sacketts’ landlocked property was somehow “wetlands.”

The agency further claimed that the Clean Water Act (CWA) forbids the Sacketts from doing anything on the land without first obtaining a special permit from the Army Corps of Engineers, a permit which they could not obtain.

When the Sacketts tried to challenge the EPA under the Administrative Procedure Act (APA), they were told that federal courts could not review the order because it was not a “final action” from EPA, even though the order threatened the couple with potential fines of $75,000 per day for failure to restore the land to its native condition.

But today, the High Court disagreed with the EPA in an opinion written by Justice Antonin Scalia, who said the order, “has all the hallmarks of APA finality” because it imposes legal obligations, declared consequences for failure to observe, represents the culmination of EPA’s decision-making process and the Sacketts have no other recourse for redress.

The EPA had warned the Court that allowing review of such action could impede EPA’s regulation of land use, but Scalia replied in the decision that it “is a repudiation of the principle that efficiency of regulation conquers all.”

Scalia said that CWA was not, “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 Ruth Bader Ginsburg wrote separately that today’s decision is only about whether courts have jurisdiction to decide if EPA has authority over the Sacketts, not whether the Sacketts can challenge the specifics of the EPA’s order.

Justice Samuel Alito also wrote separately that the Obama administration’s assertion, “a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of [EPA] employees.”

Alito then lamented, “the reach of the Clean Water Act is notoriously unclear.” He said the Sackett decision as providing only “a modest measure of relief,” not a broad-based win for property owners.

It just so happens that all nine justices could agree on the outcome, but probably for very different reasons. The four conservatives do not want CWA to give EPA ridiculously-broad reach that eviscerates property rights.

The four liberals favor courts having the power to resolve the merits of any dispute. And the lone moderate—Justice Anthony Kennedy—usually wants courts at least to have the option of weighing in on disputes. 

Thus, a decision on whether the CWA blocks the Sacketts from building might be a 5-to-4 split before this Court, and it’s not clear which way the fifth vote would go.

The closest precedent—not on the legal issue here but rather on the philosophical principles in play—is the Court’s 2006 Rapanos v. U.S. decision.

In that case, four conservatives went one way and four liberals another, with Kennedy taking a split-the-difference approach that’s almost useless as a rule of law, empowering courts to decide case-by-case whether CWA applies.

The case now goes back to the lower court, where it’s unclear whether the Sacketts will prevail.

Alito hits the nail on the head by concluding in his concurrence, “Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.” Don’t hold your breath for this Congress to do so.

Examiner legal contributor Ken Klukowski is on faculty at Liberty University School of Law.

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