On Wednesday, the U.S. Supreme Court in the case Sackett v. EPA, held that property owners have a right to sue the EPA to make an immediate challenge to an EPA "compliance order." The recipients of such compliance orders from the EPA, as a result of the Court's 9-0 opinion written by Justice Scalia, no longer have to wait until the agency chooses to sue them to enforce the order. They have a right, under the Administrative Procedure Act, to sue as soon as they receive an order to which they object.
Hans Bader, senior attorney and counsel for special projects with the Competitive Enterprise Institute, in a piece published on CEI's blog OpenMarket.org, discusses the opinion and the EPA's problematic regulatory policies.
The EPA has a practice of issuing "compliance orders" to property owners telling them to stop using their land and restore it to its prior condition, under penalty of $37,500 a day in fines, and declaring in such orders that such land is a federally protected wetland. It then waits months or years before actually suing the property owner for the fines, which accrue daily, potentially adding up to millions in fines. But in the meantime, it insists that the property owners can't challenge its claim that their property is a non-usable wetland in court. If they want to take issue with its claim that their property is a "wetland," they have to wait until the EPA sues them later on to collect those fines, after they've racked up potentially millions in fines under the compliance order....
There is no clear legal test for what a wetland is, since the last time the Supreme Court tried to come up with a definition in the Rapanos case, the judges split 4-1-4 on how to define it, splitting three ways in three different opinions each of which had a different test for what a wetland is. The EPA has seemingly flouted even the few principles shared among a majority of the Supreme Court justices (the four-justice plurality and Justice Kennedy's concurrence), in its vague and manipulable guidance as to what is a wetland. In light of the huge fines that can be imposed on property owners, and the breadth and ambiguity of the EPA's concept of "wetland," which includes much land that seems like dry land to a layman, denying property owners the right to immediately challenge an EPA "compliance order" effectively forces them to do whatever the EPA said, even if the EPA's position was arbitrary and capricious.
Justice Alito puts it best in his concurring opinion:
The Court's decision provides a modest measure of re-lief. At least, property owners like petitioners will have the right to challenge the EPA's jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property ownerswith little practical alternative but to dance to the EPA's tune.
Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.
It will be interesting to track whether Congress takes up Justice Alito's prescription.