WASHINGTON -- The Supreme Court on Wednesday unanimously reversed a lower court opinion that forbade an Idaho couple from challenging an Environmental Protection Agency compliance order that carried with it tens, if not hundreds, of thousands of dollars in potential penalties.
A few months after Chantell and Michael Sackett began preparations to build their dream home just north of Idaho's Priest Lake in 2005, the EPA came calling with an order that they stop and restore their lot to its original condition. The EPA determined that the Sacketts' property contained "wetlands," from which the dirt and rock they used to fill their property would flow into Priest Lake in violation of the Clean Water Act's prohibition on "the discharge of any pollutant by any person" without a permit into "navigable waters," defined in the law as "the waters of the United States." The Sacketts did not believe that their property was subject to the Clean Water Act and brought suit, but lower courts refused the Sacketts an opportunity to fight the order -- and with it, the civil penalties of up to $75,000 per day of non-compliance that they were potentially accruing -- until the EPA itself chose to bring an action.
Justice Antonin Scalia, writing on behalf of the entire Court, allowed the Sacketts' suit to proceed. The government argued that the compliance order was "a step in the [EPA's] deliberative process" over whether to bring an enforcement action against the Sacketts, and therefore not the kind of "final agency action" that would trigger the Sacketts' ability to sue. Rejecting that argument, Scalia wrote that "[t]here is no reason to think that the Clean Water Act was uniquely designed the enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review -- even review of the question whether the regulated party is within the EPA's jurisdiction."
The decision represents a win not only for the Sacketts but also for the libertarian legal community and property rights advocates, who argued that the EPA's previously unchallengeable compliance orders represented the administrative state run amok.
Still, the decision does not mean that the Sacketts, or anyone else now able to push back against EPA compliance orders, will ultimately prevail in their lawsuits.
Justices Ruth Bader Ginsburg and Samuel Alito wrote separate concurring opinions to signal a less-than-unanimous future should the Supreme Court tackle the legality of the EPA's Clean Water Act compliance orders. The justices deadlocked on ideological lines in a 2005 case challenging the EPA's broad definition of "navigable waters."
"Whether the Sacketts could challenge not only the EPA's authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order is a question today's opinion does not reach out to resolve," Ginsburg wrote. "Not raised by the Sacketts here, the question remains open for another day and case."
Alito implored Congress to fix the "notoriously unclear" scope of the Clean Water Act. "Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy," Alito wrote. "Allowing aggrieved property owners to sue ... is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem," he wrote.