Supreme Court on EPA Case: Government Reasoning 'Very Strange'

01/12/12

In recent days, the court heard arguments in the case of Idaho couple, Chantell and Michael Sackett. The pair was readying a half acre plus tract of land on which they were going to build a home, back in 2007. However, EPA officials ordered work to be stopped, saying the property, located near Priest Lake in Northern Idaho, was a wetland and that the Sacketts had to obtain a permit under the Clean Water Act regulations before building.


The Sacketts were ordered by the EPA to return the land to its original state by removing piles of fill and replanting vegetation that had been cleared. In addition, the EPA's written directive threatened fines of over $30,000 per day if this was not done.

The Sacketts argue they have a constitutional right to seek judicial review of the EPA's directive immediately. However, a federal appeals court said the couple had to wait until regulators tried to enforce the order by asking a federal court to impose a fine.

Justice Samuel Alito said at the hearing, “Don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?”

The outcome of the case could have consequences for energy companies and manufacturers, and may result in a weakening of said EPA compliance orders. Some 3,000 plus orders are issued each year to both individuals and businesses, all of which come with extreme pressure to end environmental violations; so much so sometimes, that the violators cry Uncle before the EPA has to justify its decision to a judge.

As a result of the Sacketts' case, it appears likely the justices may rule in favor of the alleged violators; in other words, those accused by federal regulators of violating environmental laws have a right to present their case to a federal judge, without delay.

Both the Obama administration and the EPA put forth that the Sacketts have other options available to them, without worrying about being fined, such as applying for the permit.

However, per the Sacketts, permit application could maybe run in the upwards of hundreds of thousands of dollars. But, environmental group Natural Resources Defense Council is of the mind that an after-the-fact permit can be had for around $2,000.

Regardless, the Sacketts have garnered support from heavy hitters, including General Electric Co. the Chamber of Commerce and the American Petroleum Institute.

In 2010, GE attempted without success to have the Supreme Court review a similar provision in the federal Superfund law. However, depending on the high court's ruling in the Sacketts' case, the decision could affect the EPA's power under the Superfund law.

However, the justices seem to disagree; Justice Elena Kagan said the government's reasoning was “very strange”, and asked, “Why would the presumption of reviewability not apply?”

Justice Stephen Breyer, perhaps the court's staunchest defender of the powers of administrative agencies, said the government “is fighting 75 years of practice” with its argument.

The Sacketts' case is reminiscent of “The Mouse That Roared”; it also exemplifies the seemingly irrational wielding of government power. While the EPA is clearly a critical government agency, its mission imperative to the future of our world, perhaps some individuals can't see the forest for the trees – no pun intended. It seems what's called for here is a good old fashioned dose of common sense and the justices are getting ready to serve it up.