Wednesday, March 21, 2012

Supreme Court Rightly Smacks Down EPA's Strong-arm Tactics

The conversion of wetlands to agricultural or residential use is a legitimate and long-standing problem, which the EPA has authority to control under sec. 404 of the Clean Water Act. Today, the US Supreme Court took an unfortunately necessary step to prevent EPA from abusing its authority under that statute. In Sackett v. Environmental Protection Agency. In this case, EPA claimed that the Sacketts had illegally filled a federally protected wetland in developing their property, and issued a compliance order requiring the landowners to completely restore the wetland or face fines amounting to $75,000 per day. However, to enforce those penalties, EPA would have to obtain a court order, which could take a substantial amount of time. If a reviewing court upheld the fines, they would be assessed from the date the compliance order was issued.

The Sackett's contended that they had not filled any legally protected wetlands, and tried  to sue EPA to overturn its compliance order against them on grounds that it was arbitrary and capricious under the Administrative Procedures Act (APA). EPA claimed, and lower courts held, that the Sacketts had no right to seek judicial review of the agency's compliance order before a court order actually imposed the penalties. The Supreme Court, in an increasingly rare unanimous opinion, rightly concluded that a compliance order constitutes a final agency action given rise to an immediate right to judicial review under both the APA and the CWA. As the unanimity of the Court suggests, this was an easy case. As a political matter, EPA surely did itself no favors in acting in such a heavy-handed way.  

This does not mean that EPA was wrong on the merits and should not have issued the compliance order. I don't know enough about the facts to draw a legal conclusion, and the case has been remanded back to the district court to determine whether or not EPA's compliance order was lawful. If it was, then the Sacketts can and should be required to restore the wetlands or face stiff civil penalties.

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