The Sackett Family Takes on the Environmental Protection Agency and Wins at the Supreme Court

Every now and then, the Supreme Court decides to review one of the thousands of cases sent its way each year, and even experienced lawyers wonder why. And then, when a usually deeply divided Court renders a unanimous decision, the case becomes even more intriguing. The Sackett Family's fight with the enforcers at the Environmental Protection Agency (EPA) merits consideration not because the Court clarified a complex constitutional question but because the Court unanimously reined in an overbearing federal agency in a rather mundane regulatory setting--the construction of a home near a lake.

Obviously, the Supreme Court felt it was time such a message was sent to federal enforcers. The Justices chose an ordinary family's plight in trying to build a home that may (or may not) have been subject to the restrictions of the Clean Water Act, 33 U.S.C. § 1311, to send the message. That law prohibits discharging any pollutant into the navigable waters of the United States without a permit. All the Sacketts wanted was their day in court to challenge the initial question of whether their property was legally subject to a civil penalty of up to $37,000 per day the EPA was demanding for failure to get a Clean Water Act permit. The EPA, a District Court in Idaho, and the Ninth Circuit Court of Appeals told the Sacketts they had no right to either administrative or judicial review of the EPA's compliance order; they simply had to comply with the order, or else pay the ever increasing financial penalty.

The Supreme Court found no trouble in concluding, as a matter of law, that the issue of whether the Sacketts property was subject to the Clean Water Act could be immediately challenged in Federal Court under the Administrative Procedure Act (APA), 5 U.S.C. § 704, to determine if the Clean Water Act applied at all to their property. One wonders why it took the Supreme Court to sort out this obvious heavy-handed enforcement effort.

In the Sacketts' case, the emphatic "lay-off" message from the Supreme Court was far more important than the legal reasoning. The question of whether an agency action, including an enforcement action, is final and therefore eligible for judicial review, is not new or terribly complicated, as legal issues go. Justice Scalia noted that the Sacketts should not be stuck in a "catch-22" situation, waiting for the EPA to decide whether to file its own court case for enforcement while civil penalties continued to pile up. Sl.Op at 4-6. Justice Scalia also made reference to the rather complex decisions about what constituted "navigable waters", the trigger that allegedly brought the Sacketts property under the Clean Water Act. The Court's decisions in the navigability cases, he said, has left everyone "to feel their way on a case-by-case basis" in discerning the reach of the Clean Water Act. Therefore, the Supreme Court's message: if the law is unclear, EPA, why not let the issues get resolved in court sooner rather than later, and don't be so heavy-handed about it.

The Supreme Court's decision was limited to the question of whether the compliance order could be challenged immediately in District Court, which they answered in the affirmative under the judicial review provisions of the APA. The EPA compliance order was "final" and the Sacketts had no other remedy available to them. Neither of these conclusions required breaking new legal ground, engaging fancy statutory interpretation, or overturning earlier decisions.

Notably, nearly all the Briefs accepted by the Court in its review of the Sacketts' plight favored the ultimate outcome. However, a number of prominent environmental groups, which frequently sue the Federal Government over environmental issues and are often faced with the same "finality" questions, sided unequivocally with the EPA. These groups favored the Ninth Circuit's view that Congress intended no judicial review of EPA's Clean Water Act compliance orders. However, by 9-0, the Supreme Court easily disposed of this view, finding that Congress gave no clear indication that the judicial review sought by the Sacketts should be precluded.

For property owners, a harsh EPA practice has been circumscribed, opening the way to resolving serious Clean Water Act jurisdiction dispute directly with the agency without large penalties hanging over their heads.