PLF: Sackett v. U.S. Environmental Protection Agency
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The U.S. Supreme Court ruled in favor of PLF clients Mike and Chantell Sackett, of Priest Lake, Idaho, who were told by EPA -- and by the Ninth Circuit -- that they could not get direct court review of EPA's claim that their two-thirds of an acre parcel is "wetlands" and that they must obey a detailed and instrusive EPA "compliance" order, or be hit with fines of up to $75,000 per day.
Transcript of PLF: Sackett v. U.S. Environmental Protection Agency
“Respondents shall remove all unauthorized fill material placed within wetlands . . . . to a location approved by the EPA representative”
“[T]he Site shall be restored to its original, pre-disturbance topographic condition with the original wetlands soils that were previously removed from the Site.”
“Respondents shall provide and/or obtain access to the Site and any off-Site areas to which access is necessary to implement this Order; and shall provide access to all records and documentation related to the conditions at the Site and the restoration activities conducted pursuant to this Order.”
“Notice is hereby given that violation of, or failure to comply with, the foregoing order may subject Respondents to (1) civil penalties of up to $32,500 per day of violation.”
11/29/10:9th Circuit Refuses
to Rehear 9/17/10:9th Circuit Affirms Dismissal
10/16/08:Appeal to Ninth
Circuit8/27/08:Court Dismisses Suit
4/29/08:Filed Complaint
Path to the Supreme Court
“We are not persuaded that the potential consequencesfrom violating CWA compliance orders are so onerous so as to ‘foreclose all access to the courts’ and create a ‘constitutionally intolerable choice.’”
“The Sacketts could seek a permit to fill their property and build a house, the denial of which would be immediately appealable to a district court under the APA. If the Sacketts were denied a permit and then took an appeal, they could challenge whether their property is subject to the jurisdiction of the CWA.”
“[T]he civil penalties provision is committed to judicial, not agency, discretion. . . . Any penalty ultimately assessed against the Sacketts would therefore reflect a discretionary, judicially determined penalty, taking into account a wide range of case-specific equitable factors, and imposed only after the Sacketts have had a full and fair opportunity to present their case in a judicial forum.”
Path to Victory!!2/25/11
Petition for Certiorari to Supreme Court6/28/11
Court Grants Petition
1/9/12Oral Argument
3/21/12Unanimous Decision
How Does the Court Decide Which Cases to Consider
• The Supreme Court has broad discretion• In 2006 term 8,517 petitions filed– Only 78 granted (.9%)
• Court tends to take cases where there is disagreement among the Circuit Courts – Example: recent healthcare cases
• In Sackett, all Circuit Courts of Appeal agreed with EPA
• Skilled lawyering can overcome long odds
Justice Thomas
Justice Sotomayor
JusticeScalia
Justice Breyer
Chief Justice Roberts
Justice Alito
Justice Kennedy
Justice Kagan
Justice Ginsburg
• Unanimous in finding for the Sacketts– The Sacketts may bring a civil action under the
APA to challenge the issuance of the EPA’s order.
• 9th Circuit decision was reversed• Opinion of the Court delivered by Justice
Antonin J. Scalia – Concurring: Alito, Ginsburg
Supreme Court Opinion
“The Government warns that the EPA is less likely to use [compliance] orders if they are subject to judicial review. That may be true---but it will be true for all agency actions subject to judicial review. The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.”
“The position taken by the Federal Government [in this case] would have put the property rights of ordinary Americans entirely at the mercy of [EPA] employees.”
“The reach of the Clean Water Act is notoriously unclear.”
“In a nation that values due process, not to mention private property, such treatment [like what the Sacketts received] is unthinkable.”“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.”
PLF’s assessment of the outcome
• The Justices have made it clear that EPA bureaucrats are answerable to the law and the courts, just like the rest of us.
• EPA will have to put in some honest work and use credible science, because the regulators must be able to justify their wetlands orders in a court of law.
• The case is reversed and remanded to the Ninth Circuit Court of Appeals
• New date will be set at the federal district court in Boise, Idaho
What the opinion means:
