EPA actions disregard due process

Rik Dalvit/For the Capital Press

Editorial

When the U.S. Environmental Protection Agency says jump, you jump. The agency doesn't have time to fuss with formalities like due process.

That's the message contained in a lawsuit between the EPA and an Idaho couple. Chantell and Michael Sackett had planned to build a house in a subdivision near Priest Lake in the northern part of the state. After they had already begun site work on the land, which was zoned residential, the EPA ordered them to stop, remove all fill, replant it and monitor it for three years. If they didn't they'd have to pay a fine of up to $32,500 a day.

The order was based on the federal Clean Water Act, which prohibits wetlands from being developed without a permit.

The Sacketts challenged the compliance order, and last week the case was heard in the U.S. Supreme Court.

At issue was whether the Sacketts could legally challenge the EPA order before the agency dragged them into court.

"If they can't get judicial review of the EPA's land grab without going through a long, costly and probably futile permitting process, then for all intents and purposes, they have been denied their day in court," said Damien Schiff, senior staff attorney for the Pacific Legal Foundation, which represents the Sacketts.

During last week's hearing, several justices questioned how the EPA handles such cases.

"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?" Justice Samuel Alito said.

"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," Chief Justice John Roberts said.

When the lawyer representing the EPA argued that the agency's compliance order was not really a final determination of the case, Justice Stephen Breyer disagreed.

"I read the order. It looks like about as final a thing as I have ever seen," Breyer 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."

It is, and with huge fines hanging over the heads of the Sacketts and others, the EPA is betting that most people will waive their day in court.

Under the Clean Water Act, the EPA had three options, according to the 9th U.S. Circuit Court of Appeals, which also heard the case. The first was to sue the couple in federal district court. The second was to assess what is called an administrative penalty, which allows the couple to be heard and present evidence supporting their position.

With either of those options, the Sacketts would have been allowed due process.

But the EPA chose the third option, which is called an administrative compliance order. With it, unless the EPA sued them to make them comply, the Sacketts would never get due process. In the meantime, the meter would be running on the fines.

The EPA had the ability to listen to the Sacketts' concerns and allow them due process but specifically chose not to.

Ultimately, the EPA's lawyer argued, the agency is so busy handing out orders it doesn't really have time to deal with any challenges or due process.

"They want the power because they have thousands of these things," Breyer said in the hearing.

That, in itself, demonstrates shortcomings not only in the law but in the process the EPA follows.

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