On Tuesday, in Sackett v. Environmental Protection Agency, the Supreme Court addressed the issue of whether or not affected persons my judicially challenge an EPA order finding the persons to have violated the Clean Water Act before compliance with the order is accomplished, often at great expense. An Idaho couple had begun construction of a home near a lake; when the EPA got wind of this, it determined that the construction was on wetlands which were a “water of the United States” within the meaning of the Act and its regulations.
The couple challenged this determination but were told by both the District Court and by the 9th Circuit Court of Appeals that there was no judicial remedy available until the couple had complied with the EPA’s order to restore the property to its original condition under an EPA restoration work plan or until EPA decided to bring an enforcement action. Compliance would cost thousands and thousands of dollars. Alternatively, failure to comply would potentially subject these persons to enforcement action fines of $37,500-$75,000 per day, with the fines mounting daily while EPA took its time deciding whether or not to bring the action.
The Supreme Court unanimously held this situation to be a violation of due process, with Justice Alito in a concurring opinion stating that, by the time aggrieved persons choosing to fight the order could get judicial review, “potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.” Although the decision was made in the context of the Clean Water Act, it would appear that in appropriate circumstances the Court’s reasoning would apply in other federal regulatory contexts as well.
On the other hand, it must be emphasized that the Sackett decision’s due-process argument was made in the context of a challenge to EPA jurisdiction. Where a federal agency plainly has jurisdiction, the argument may not apply. Indeed, in her concurring opinion, Justice Ginsburg wrote: “Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not resolve.”
Thus,the Clean Water Act case arguably only makes a dent in the reach of federal power and does not constitute a wholesale reversal of the expansion of that power that has taken place over recent decades. Nevertheless, as a 9-0 decision cutting back somewhat on such power, the case is noteworthy.