The ideologically divided Supreme Court, expected to split 5-4 or at most 6-3 on Obamacare, decided unanimously to slap down the Environmental Protection Agency in last month's Sackett ruling. The government had argued that the target of an EPA compliance order couldn't challenge that order in court. Lower courts had agreed. The Supreme Court didn't. All nine justices said that under the federal Administrative Procedure Act, an EPA compliance order is a "final agency action" subject to judicial review.

The court decided Sackett in a broader legal and political context, with some battle lines clearly drawn, but its decision did not address the broader questions: Does the Constitution's Due Process clause, as well as the APA, require judicial review?  And how broadly can the EPA — and the U.S. Army Corps of Engineers — define the "waters of the United States," which they regulate under the  Clean Water Act?  Some wetlands clearly qualify, but how tenuous can the connection to deep or flowing water actually be?  Neither Congress nor the Court has spoken clearly on that issue, but the Sackett court didn't blow away any of the fog. Instead, it focused narrowly on procedure.

Presumably the unanimous verdict was made possible by that narrowness — and made more likely by a set of particularly egregious facts: An Idaho couple, Mike and Chantell Sackett, bought a .62-acre lot in a development a couple of blocks from Priest Lake. Houses flanked the lot on two sides, paved streets on the other two.  The Sacketts had fill dumped on the lot, and got ready to build. 

Then the Environmental Protection Agency gave them a compliance order;  surprise — the EPA considered their lot a wetland. The Sacketts couldn't build there. In fact, they couldn't leave the fill there. They had to remove the fill and restore the lot to a condition in which they hadn't found it, planting native vegetation as specified — and monitored — by the EPA. 

And if they didn't? Under the federal Clean Water Act, they would be subject to fines of up to $37,500 a day for violating the statute, and another $37,500 a day for violating the order, bringing their daily liability to a whopping $75,000. They talked with the agency and the EPA modified its demands for planting, but not its demand to remove the fill, and not its threat to fine the couple up to $75,000 a day. And the agency turned down their request for a hearing. 

Represented by the pro-property-rights Pacific Legal Foundation, the Sacketts tried to challenge the complaint in court, but the government argued that under the Administrative Procedure Act and the Clean Water Act, the Sacketts couldn't go to court until they were in a position to challenge a final agency action. This wasn't a final agency action. Therefore, the court had no jurisdiction. The district court bought that argument. The 9th Circuit agreed. But the Supreme Court took the case. A long list of business and builders' groups filed friend of the court briefs on the Sacketts' behalf. The outcome wasn't even close.

Did even the Sacketts' attorneys expect a 9-zip decision?   "If you had asked me before oral argument if we would get a 9-0 decision, I would have been fairly skeptical," says Reed Hopper, a principal attorney for the Pacific Legal Foundation. But "after hearing the questions the justices asked during oral argument, it was no big surprise."  Hopper says "it was pretty plain . . . that every justice was skeptical of the EPA decision." (He wasn't the only one who thought the justices had tipped their hands during oral argument. Their questioning left few doubts of the outcome.)

He knows that the Court wasn't swayed only by his logic. "The facts do make a difference," he says. "It was so clearly a travesty of justice to place such a burden on the Sacketts."

This case could serve as a poster child for federal eco-nazis bullying private citizens. In fact, it already has. "Federal agencies are out of control, The Washington Times editorialized on the day of the decision. "The grant of virtually unlimited power with no accountability has gone to the heads of some unelected bureaucrats, and nowhere is that more true than at the Environmental Protection Agency (EPA). Even the Supreme Court has had enough. All nine justices agreed Wednesday that the agency has finally gone too far."

The EPA has been doing this for a long time; why has the issue taken so long to reach the Supreme Court?  "For 40 years now, the courts have said that nobody has a right to challenge these kinds of compliance orders," Hopper says. "The cost for the average landowner is simply too much [for any sympathetic little guy to challenge the practice until now.]"

Will the Sackett decision make it harder for the EPA to enforce the law?  Probably. Some people presumably hope so. "The Sacketts portray their lawsuit as a motherhood-and-apple-pie case of an ordinary family who just want to build their dream house," wrote NRDC attorney Larry Levine before the decision in the NRDC's Signpost blog.  "But how many Americans do you know whose home-building plans attract support from the American Petroleum Institute, the National Mining Association, National Association of Manufacturers, and dozens of other corporate interests?"

"These industry groups have filed friend-of-the-court briefs on behalf of the Sacketts," Levine argued, "because they see an opportunity to hamstring the EPA’s ability to enforce the Clean Water Act — and potentially a whole raft of bedrock environmental laws that protect Americans’ health and natural resources, including the Clean Air Act, Safe Drinking Water Act, and the Superfund hazardous waste law.  If the court rules in favor of the Sacketts and these industry giants, the agency will have a much harder time stopping environmental harm. . . . The EPA’s job of protecting Americans’ health and environment will get harder, and polluters’ efforts to dodge the rules will get easier."

The Court acknowledged that enforcing the Clean Water Act might get harder — but it didn't think that justified shielding compliance orders from judicial review. "The Government warns that the EPA is less likely to use the orders if they are subject to judicial review," Scalia wrote. "That may be true — but . . . [the Administrative Procedure Act’s] presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance.'"

It's less surprising that Scalia is skeptical about EPA's enforcement of wetland regulations than that he wound up expressing his skepticism on behalf of a united court. On the underlying issue of what, exactly, constitutes a protected wetland, he has made his views clear.  He wrote for one of the court's four-vote pluralities in the key Rapanos decision of 2006.

As he summed up the evolution of the court's thinking in Sackett, "[i]n United States v. Riverside Bayview Homes, Inc, we upheld a regulation that construed 'the navigable waters' to include 'freshwater wetlands,' themselves not actually navigable, that were adjacent to navigable-in-fact waters. Later, in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, we held that an abandoned sand and gravel pit, which 'seasonally ponded' but which was not adjacent to open water, was not part of the navigable waters. Then most recently, in Rapanos v. United States, we considered whether a wetland not adjacent to navigable-in-fact waters fell within the scope of the Act. Our answer was no, but no one rationale commanded a majority of the Court. In his separate opinion, the chief justice expressed the concern that interested parties would lack guidance 'on precisely how to read Congress’ limits on the reach of the Clean Water Act' and would be left 'to feel their way on a case-by-case basis.'"

The Sacketts and all other interested parties have been feeling their way ever since. The EPA and the Corps don't seem likely to add much clarity with their proposed new Clean Water Act guidance, now being vetted by the Office of Management and Budget. Indeed, the proposed new "Guidance is in some respects less user-friendly than the Existing Guidance," Seattle attorney Jeff Kray wrote last year in the Marten Law newsletter.