Supreme Court's review may change government compliance orders

By MATEUSZ PERKOWSKI

Capital Press

The U.S. Supreme Court has decided to review a case that may have important repercussions on the enforcement of environmental laws.

The central issue pertains to whether people can challenge an order from the U.S. Environmental Protection Agency to comply with the Clean Water Act -- or potentially any other statute.

The underlying lawsuit centers on an order issued by the EPA to landowners Chantell and Michael Sackett, who were hoping to a build a home on their property near Idaho's Priest Lake.

After the couple had begun earth-moving work in 2007, the EPA issued a compliance order accusing them of violating the Clean Water Act by putting fill material into a federally protected wetland.

The agency demanded that they remove the material, replant the parcel with vegetation and monitor it for three years, effectively blocking their plans to build a house.

The Sacketts disputed that the property was a wetland subject to the EPA's oversight and filed a lawsuit against the agency, but the case was dismissed by the 9th U.S. Circuit Court of Appeals last year.

The ruling said the court lacked jurisdiction over such cases until the EPA actually sued the alleged violators or denied them a Clean Water Act permit.

The Sacketts claim that's unfair because violating the compliance order would put them at risk of hefty civil and criminal penalties.

"That is not a constitutionally valid system," said Damien Schiff, an attorney with the Pacific Legal Foundation, which is representing them.

Capital Press was unable to reach a representative of the EPA for comment.

People should be able to seek judicial review of a compliance order because their only options are either to comply and then try to obtain a Clean Water Act permit or violate the order, either of which would be expensive, Schiff said.

"It's more than just a threat letter. It's a legally binding document," he said.

Such compliance orders effectively allow the EPA to dictate actions even if it has no authority to do so -- such as when a property isn't a regulated wetland, Schiff said.

Potentially, the Supreme Court's decision in the case may affect all government compliance orders under all environmental statutes, though the regulatory impact will depend on how narrowly or broadly the ruling is tailored, he said.

Schiff said he expects the high court to hear oral arguments in the case in early 2012 and reach a decision that spring.

In a court document filed by EPA, the agency urged the court not to review the case.

Defendants in Clean Water Act cases have the "full opportunity" to challenge the EPA's findings when the agency takes enforcement action against them, the filing said.

Any penalties under the statute are not imposed until a federal court has ruled that the statute has been violated, and the court, not the agency, determines the appropriate penalties, according to the filing.