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.
Unhelpfully, the agency remains committed to feeling one's way: "EPA has stated that it would make 'case by case, fact-specific determinations of jurisdiction' to determine whether [wetlands] 'alone or in combination with similarly situated other waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters or interstate waters.'"
Kray also noted that the "agencies’ decision to issue the 2011 Guidance instead of immediately initiating rulemaking has been criticized by members of Congress and representatives from both industry and environmental interest groups. The decision to rely on a policy statement rather than a rule also runs counter to several recent federal appellate decisions giving limited deference to agency 'guidance' documents."
Hopper, the Sacketts' attorney, is definitely among the critics. Although the guidance is pegged as an internal document, not subject to judicial review, he says it can be brought into the courts in a two-step process: First, you argue that it's really underground regulation, new law in sheep's clothing, and cannot legally be shielded from review. Then, you challenge it on the merits. He argues that the new guidance would violate both the law and the Constitution.
But Congress may conceivably make the more controversial parts of the guidance moot. Senator Rand Paul has introduced the Defense of Environment and Property Act of 2012 (S.2122), which would codify Scalia's Rapanos opinion into law. The Clean Water Act allows the feds to regulate discharges into "the waters of the United States." Scalia argued in Rapanos that "on its only plausible interpretation, the phrase 'the waters of the United States' includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features, that are described in ordinary parlance as 'streams[,] . . . oceans, rivers, [and] lakes.' The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall."
He conceded that the Act also enables the feds to regulate wetlands, but "only those wetlands with a continuous surface connection to bodies that are 'waters of the United States.' . . . Thus, establishing that wetlands . . . are covered by the [Clean Water] Act requires two findings: First, that the adjacent channel contains a 'wate[r] of the United States,' (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins."
Paul has said that his "bill will restore common sense to federal jurisdiction over navigable waters, and place reasonable limitations on an agency that has become dangerously out of control." Hopper has a similar take. "The agency now asserts its authority over virtually all waters in the country," he says. "You're seeing some movement in Congress because the agency is unwilling to accept any limit."
He suggests that "the question really comes down to whether philosophically . . . Congress really feels that the water should be regulated by the states or whether it should be regulated by the central government." Presumably many members of the Republican caucus would prefer the states — if they prefer any regulation at all. But does the public really want something like this?
Hopper thinks the public may be a lot friendlier to the idea now than it would have been before Sackett. That decision did not reflect a court following public opinion, he argues. Rather, the facts of the case have helped shape public opinion. They have made it clear that "over-zealous enforcement by these agencies doesn't affect just big business." There are, of course, those who think the agencies aren't zealous enough. But they may be fighting a rear-guard action now. And the agencies themselves may wind up fighting one in the courts.