The U.S Supreme Court Decided Today A Significant CWA Case

Today the U.S. Supreme Court unanimously (with two concurring decisions) decided Sackett v. EPA - a case that everyone in the environmental law business has been anxiously awaiting.  The issue concerns whether a USEPA unilateral compliance order issued under the Clean Water Act was subject to judicial review. USEPA had issued the Sacketts a compliance order asserting the Sacketts had illegally filled jurisdictional wetlands.  The compliance order directed the Sacketts to immediately restore the wetland and subjected them to stiff daily penalties for every day they failed to comply with the order.  The USEPA argued their compliance order was not subject to judicial review. (We note the Court did not provide any insight into what is a jurisdictional water subject to regulation. However, the Court did admonish Congress and the USEPA for failing to provide clear direction on the issue.)

The Supreme Court found the compliance order did require due process review - a direction the Court signaled during heated oral arguments.  This decision opens a brand new opportunity for persons who receive unilateral orders from EPA.  While the decision is based on the Clean Water Act, its implications will be interesting to watch!

[Update:  We thought you might be interested in some of the language in Justice Alito's concurring opinion:

The position taken in this case by the Federal Government - a position that the Court now squarely rejects - would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA 

 


may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

(Emphasis is ours.)  At least you would like to believe it is unthinkable ...