Posted: Friday, March 30, 2012 1:00 AM
The U.S. Supreme Court last week shortened the Environmental Protection Agency's leash a bit, giving property owners their right to due process when faced with orders from the agency. More needs to be done.
In 2005, Mike and Chantell Sackett paid $23,000 for a lot in Priest Lake, Idaho, and in 2007 began construction on a three-bedroom home. After they finished the site preparation, agents from the EPA and the Army Corps of Engineers arrived on the scene demanding to see the Sackett's permit for building on wetlands.
The Sacketts disagreed their property is or ever was a wetlands subject to the Clean Water Act, but the EPA issued a compliance order demanding the couple stop construction, remove fill from the property and restore vegetation. If the couple failed to go along, the EPA said they would be fined for violating the Clean Water Act and for ignoring the order. Those fines could total about $70,000 per day.
That's when the Sacketts found that they could not challenge the compliance order in court as a plaintiff. They could only argue their case if they ignored the order and were taken to court by the EPA. In that event, the fines would begin to rack up over the months it would take for the case to make its way onto the docket. If they lost, they could owe millions in back fines in addition to the costs or restoring the site.
The EPA had the Sacketts -- and other property owners facing compliance orders -- over a barrel, forced to submit to terms dictated by the agency and lose the intended use of their property, or defy the order and find themselves defendants in a lawsuit brought by the government. Faced with extreme penalties, few property owners defy the orders.
The 3,000 or so orders the EPA issues each year have been effective tools that have allowed the agency to get its way. As Chief Justice John Roberts observed when the court heard the case in January, the agency could make whatever finding it wanted because it rarely had to prove its underlying premise.
But last week the court unanimously struck down that tyranny. It ruled the Sacketts have the right to challenge the EPA's order and its penalties in court.
Not decided by the court is whether the Sacketts' lot is a wetland, or whether the EPA has any authority over wetlands. The Clean Water Act covers waters with a "significant nexus" to "navigable waters," and the definition has been expanded by EPA rulemaking to include more than rivers, streams and lakes.
Congress needs to provide statutory clarity regarding the "waters" covered by the act. Otherwise, as Justice Samuel Alito observed, property owners will have "little practical alternative but to dance to the EPA's tune."