Yesterday, the Supreme Court heard oral arguments in Sackett v. EPA, No. 10-1062 (transcript here). We were going to write up our thoughts, but minds immeasurably better than ours beat us to it. Concensus seems to be that the EPA is going to get smacked, but we can't tell yet how hard. Our review of the transcript leads us to the same conclusion, but we've learned never to count chickens before their anticipated hatch date, so will reserve judgment.
- SCOTUSblog: A weak defense of EPA - "With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers."
- Volokh: Sackett Oral Argument - "Yet whether a permit is necessary in the first place is part of what is at issue, which prompted Chief Justice Roberts to characterize the federal government’s position as: Since you didn’t ask us whether we could regulate your property, we get to do it. After all, Roberts noted later, most landowners will not violate the order and risk the resulting accumulation of penalties just to get their day in court."
- RegBlog: The Need for a Judicial Check on Regulatory Compliance Orders - "Whether the Sacketts or EPA officials are correct is not the issue before the Court. The issue is simply whether the Sacketts may seek a judicial determination of the correctness of EPA’s order without having to violate that order and risk large civil or administrative penalties in order to obtain a judicial determination of the legality of EPA’s order as a defense to that enforcement action. EPA, understandably, would like to avoid judicial review until it brings an enforcement action in court. The threat of huge penalties if EPA is correct often is enough to force compliance even if a defendant strongly believes that EPA is wrong. Recall Clint Eastwood’s challenge as Dirty Harry to various perpetrators: 'make my day,' he would say, leaving them to guess whether he had another bullet in his pistol."
- Legal Planet I: U.S. Supreme Court Justices Are on USEPA's Case - "There seems little doubt from the oral arguments that the Sacketts will prevail before the Supreme Court, and that the lower court decisions will be reversed. (Having attended today’s arguments, I count at least seven justices siding with the Sacketts, and it’s conceivable that the opinion may even be unanimous.) The more difficult–and intriguing–question is how sweeping or narrow a decision will the justices issue?"
- Legal Planet II: Can you stand to hear more about Sackett? - "And finally, the Sacketts and their allies may find this a Pyrrhic victory. Much of the argument today focused on the fact that EPA had sent the Sacketts a formal Compliance Order rather than just a warning. The US tried to argue that the compliance order had no more legal effect than a warning, but no one was buying that (not even me). But it seems clear that EPA could achieve much the same effect at no risk of the kind of litigation tangle described above by just taking the word “order” out of the letter it sends. As a practical matter, a letter simply expressing EPA’s view that a landowner is in violation of the law and describing the potential penalties is going to be just as coercive as the order the agency sent the Sacketts. Would you build your dream house under the threat that you might be forced to tear it down in the future? And would you laugh at $37,500 per day in potential liability but quail at $75,000?"
- Gideon's Trumpet: Sackett Oral Argument - "Naturally, today’s New York Times comes down editorially on the side of the oppressive government. But if the oral argument was indicative of what’s on the Justices’ minds, the Times got it wrong."
Disclosure: Pacific Legal Foundation represents the petitioners; I do PLF's work in Hawaii.