Attorney says agency's order violates due process

Analysis

By MATEUSZ PERKOWSKI

Capital Press

Landowners Chantell and Michael Sackett don't believe they should be required to get a Clean Water Act permit to build a home on their property.

The couple doesn't think their half-acre lot near Idaho's Priest Lake qualifies as a wetland -- contrary to a determination by the U.S. Environmental Protection Agency.

In 2007, the agency ordered the Sacketts to remove fill from the property, replant the parcel with vegetation and monitor it for several years.

Faced with either exposing themselves to steep financial penalties or complying with the order and then trying to obtain a permit at great cost, the couple tried to challenge the decision in federal court.

However, the 9th U.S. Circuit Court of Appeals found the Sacketts could not face the EPA in court until the agency actually brought civil litigation against them.

Whether the Sacketts are entitled to fight the compliance order is now being reviewed by the U.S. Supreme Court. The eventual ruling is expected to have a significant impact on similar compliance orders issued by the government.

During oral arguments on Jan. 9, several justices appeared skeptical of the EPA's position that the couple had sufficient legal options in pursuing home construction.

"That seems very strange for a party to apply for a permit on the ground that they don't need a permit at all. ... Isn't it presupposed if you're applying for a permit that you need one because they are wetlands?" said Justice Samuel Alito.

The nature of the compliance orders likely deter many landowners from challenging the EPA's conclusions, said Chief Justice John Roberts.

"All EPA has to do is make whatever finding it wants and realize that in 99 percent of the cases, it's never going to be put to the test," he said.

Damien Schiff, the Sacketts' attorney, argued that the compliance order exposed the couple to "double liability." Not only could they be subject to more than $30,000 per day for violating the Clean Water Act, but they could also face more than $30,000 for ignoring the compliance order.

Schiff said that the EPA's compliance order procedure violates the constitutional right to due process and federal administrative law.

"As it stands now, they have been told, 'You cannot build your home, you must convert your property into wetlands and you are being charged $37,500 per day if you don't immediately comply.' And yet you get no day in court?" he said.

Malcolm Stewart, deputy solicitor general representing the government, said the EPA is acting similarly to health inspectors or fire inspectors who can issue citations for code violations.

"It's very common for law enforcement agencies of all sorts to give warnings to regulated parties: 'We think you are violating the statute," he said.

As for the question of "double liability," Stewart said the EPA is allowed to impose penalties for compliance order violations in addition to Clean Water Act violations, but the government is unaware of both fines actually ever being imposed.

Justice Antonin Scalia reacted doubtfully to this assurance, saying, "I'm not going to bet my house on that."

Justice Stephen Breyer seemed dubious of the EPA's claim that its compliance orders shouldn't be challenged in court because they're not final agency actions.

"I read the order. It looks like about as final a thing as I have ever seen," he said. "This is not a warning. I mean, you only have to look at it. I was quite moved by the fact when I looked at it, it didn't say a warning. It said: This is an order. It looks extremely formal."

Later in the oral argument, however, Breyer said the EPA is facing "more of a dilemma than I thought" because judicial review of compliance orders would require intense formal fact-finding in a multitude of cases.

"They want the power because they have thousands of these things," he said.