It's a well-worn refrain, heard often in the environmental context: "The property owner wouldn't be in this fix if she just ___________." Fill in the blank with "commissioned an Environmental Assessment" -- or "Environmental Impact Statement," or "applied for a development permit," or similar.
At first blush, it's an appealing argument -- "Just follow the law." But like other facile arguments, it often fails in the details department: doing so can delay a development for years, and it can cost thousands of dollars -- or hundreds of thousands -- to put together an application for environmental review or for a permit, or even to seek a government determination that a proposal is exempt from review or otherwise outside the regulatory jurisdiction of a permitting agency. In those situations, not only are the costs unnecessary, the time and money involved can kill the plans, especially for small property owners. "Death by a thousand days," as they say.
What is a property owner to do when faced with a regulatory agency asserting that its permission is needed before the property can be used, and the property owner's belief that the agency does not have authority over her land?
The issue is now before the U.S. Supreme Court, which earlier this week agreed to review a Ninth Circuit decision which concluded that property owners who contested the U.S. Environmental Protection Agency's Clean Water Act jurisdiction could only do so only in the course of an EPA enforcement action, and could not seek immediate judicial review of whether their property was even subject to the EPA's authority. Sackett v. EPA, 622 F.3d 1129 (9th Cir. 2010).
The Sacketts own a small lot in Idaho and filled a portion of it with dirt and rocks to prepare it for the construction of a house. The EPA issued a "compliance order" alleging the parcel is a "wetland" and that the fill was an illegal "discharge" into navigable waters without a permit, in violation of the CWA. It ordered the Sacketts to remove the fill, or face penalties of up to $42,500 per day. The Sacketts believed their property is not subject to the CWA (video here, if you want a view of the place), and asked the EPA for a hearing, which it denied.
So they challenged the EPA's jurisdiction by filing a declaratory judgment action in federal court. But the court dismissed the complaint because the CWA precludes judicial review of a compliance order before the agency has started an enforcement action in federal court. The Ninth Circuit, as noted above, affirmed, holding that property owners cannot affirmatively seek a determination that the EPA has no basis for asserting CWA jurisdiction over their land.
The Sacketts sought further review of the Ninth Circuit opinion (see their cert petition below), asking this Question Presented:
Chantell and Michael Sackett own a small lot in a built-out residential subdivision that they graded to build a home. Thereafter, the Sacketts received an Administrative Compliance Order from the Environmental Protection Agency claiming that they filled a jurisdictional wetland without a federal permit in violation of the Clean Water Act. At great cost, and under threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties, the Sacketts were ordered to remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years. The Sacketts were provided no evidentiary hearing or opportunity to contest the order. And, the lower courts have refused to address the Sacketts' claim that the lot is not subject to federal jurisdiction.Do Petitioners have a right to judicial review of an Administrative Compliance Order issued without hearing or any proof of violation under Section 309(a)(3) of the Clean Water Act?The Court agreed to review the case, on these questions:
1. MAY PETITIONERS SEEK PRE-ENFORCEMENT JUDICIAL REVIEW OF THE ADMINISTRATIVE COMPLIANCE ORDER PURSUANT TO THE ADMINISTRATIVE PROCEDURE ACT, 5 U. S. C. § 704?2. IF NOT, DOES PETITIONERS’ INABILITY TO SEEK PRE-ENFORCEMENT JUDICIAL REVIEW OF THE ADMINISTRATIVE COMPLIANCE ORDER VIOLATE THEIR RIGHTS UNDER THE DUE PROCESS CLAUSE?
[Disclosure: Pacific Legal Foundation represents the property owners. I do PLF's work in Hawaii cases.]
Here are the other cert stage briefs (from SCOTUSblog). Here's the Court's docket.
More on the case from the New York Times, from PLF's Liberty blog, and from the Cockle Bur blog.
Stay tuned for more.
