At SCOTUSBlog, Lyle Denniston characterizes the oral argument in Sackett v. EPA as “A Weak Defense of EPA.” Perhaps that’s because the EPA’s position, applied in this case, is difficult to square with traditional notions of due process. Denniston highlights one passage of the oral argument (transcript) that highlighted the nature of the government’s position:
JUSTICE ALITO: Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States? You don’t — you buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to. You have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.
The federal government’s attorney did not have much of an answer other than to say that, in most cases, there would have been some prior communication between the landowner and the EPA or Army Corps alerting the landowner to the potential problem, at which point the landowner could have filed a permit. Yet whether a permit is necessary in the first place is part of what is at issue, which prompted Chief Justice Roberts to characterize the federal government’s position as: Since you didn’t ask us whether we could regulate your property, we get to do it. After all, Roberts noted later, most landowners will not violate the order and risk the resulting accumulation of penalties just to get their day in court. As Justice Scalia noted later, in most cases, if the government is threatening to prosecute you, rather than “wait for the prosecutor to drop the hammer,” you may go to court to seek a declaratory judgment to resolve the question. Yet here, where the government has done more than merely threaten prosecution, no such pre-enforcement review is available. Worse, refusing to comply with the government’s order is, itself, a legal violation. It would be one thing to defend this sort of system where time is of the essence — such as where prompt action is necessary to prevent severe, ongoing contamination, such as from a hazardous waste spill. It’s quite another to try and defend this as “due process” when what is at issue is a the deposit of clean fill on a half-acre plot of land that may not even be within the scope of federal regulatory jurisdiction in the first place.
UPDATE: At Legal Planet, Richard Frank comments:
There seems little doubt from the oral arguments that the Sacketts will prevail before the Supreme Court, and that the lower court decisions will be reversed. (Having attended today’s arguments, I count at least seven justices siding with the Sacketts, and it’s conceivable that the opinion may even be unanimous.) The more difficult–and intriguing–question is how sweeping or narrow a decision will the justices issue? Will the anticipated ruling against EPA be confined to enforcement of the Clean Water Act, or might it extent to a host of other federal environmental laws that EPA frequently enforces through the issuance of ACOs? And will the Court base its decision on exclusively on statutory grounds, or will it follow the urging of several of Sacketts’ amici to find that the lack of judicial review of ACOs represents an unconstitutional deprivation of due process?
Chris Rhodes says:
It’s the fed’s world; we’re all just renters in it.
January 9, 2012, 3:34 pmSteve says:
Does anyone care to articulate the other side of the argument?
January 9, 2012, 3:42 pmNYC Esq. says:
The EPA’s lawyer apparently didn’t care to.
January 9, 2012, 3:55 pmOptimist says:
It’s for teh grandchildren. Because we say so.
January 9, 2012, 3:57 pmloki13 says:
Look at the first half of the transcript, where the justices were struggling to understand both what the petitioner wanted and how it could possibly work.
That’s why this is a closer case than I think Prof. Adler is making it out to be. These can be construed of as “warning letters” just putting the landowners on notice that they are in violation and can be subject to a civil suit by the EPA. OTOH, they are also on notice that they are in violation, so if they don’t comply, they are now willfully disobeying the law (and liable for 2x the fines, which are already huge).
But for a court to review the action at this stage puts the cart before the horse, in many way. Then again, it is entirely reasonable to think that it is unfair for a homeowner to get no review and risk everything simply based on a letter, without any knowledge of what’s going on at the EPA.
The only thing I know for sure is the government attorney did a piss-poor job.
January 9, 2012, 3:59 pmloki13 says:
By the way, I actually thought the most interesting part was in rebuttal. Three main lines of questioning (such as they are) by Breyer, Kagan, and Scalia. Scalia seemed very open to the petitioners point of view. Kagan was more searching.
But Breyer is usually the one to watch in these admin law cases. At first, it seemed like he was favoring the government, but his last (and lengthy) question/statement certainly made it look like he was open to the idea of striking it down and letting the EPA come up with some sort of pre- or post- order procedure that would comport with due process. (Which might be the best solution; something more protective than what we have now and would comport with due process, but short of a judicial hearing).
January 9, 2012, 4:18 pmDon says:
In Rapanos Supreme Court told the EPA and the Corps of Engineers that they were overstepping their bounds of what is and what isn’t Wetlands
But they have steadfastly refused to make regulations that provide a mechanism for a property owner to show that their property doesn’t have any wetlands on it.
To even say “I don’t have wetlands” you have to apply for a permit to fill the wetlands, pay for a study, then EPA gives you permission to “fill the wetlands” for an area that, based on Supreme Court decisions, wasn’t a wetland in the first place.
By refusing to allow for any process besides their expensive permitting process, the EPA is basically still regulating everything the Supreme Court said they couldn’t regulate in Rapanos. But now it is “voluntary” ie, forced compliance through an ACO process that the homeowner can’t challenge.
January 9, 2012, 4:21 pmKazinski says:
If the EPA has lost Breyer then they’ve lost:
January 9, 2012, 4:44 pmMartinned says:
And this is where, imho, the problem occurs. The letter itself creates a legal effect over and above the pre-existing (alleged) violation of the law. And in a normal legal order, like my “home town” of EU law, all government decisions that produce legal effects are open to judicial review.
January 9, 2012, 4:47 pmCNN, CNS, WSJ and others on Sackett | PLF Liberty Blog says:
[...] 2: More from the Chicago Tribune, the Charlotte Observer, and from the blogs Volokh Conspiracy and RegBlog. RegBlog makes a great point: One need not view EPA as a rogue agency – or even as [...]
January 9, 2012, 5:13 pmOrenWithAnE says:
How much could it cost to file a petition to fill wetlands solely for the purposes of getting a rejection? I understand that it could be expensive to file one with some merit but if you file one with “Allow me to fill in this wetlands because the world will end in Dec 2012 and there’s no sense in protecting the environment”, that ought to be rejected (and fast!) giving you a final order to appeal via the APA.
January 9, 2012, 5:33 pmIspep Teid says:
Somewhere around $350.
January 9, 2012, 5:49 pmbyomtov says:
Isn’t part of the problem, at least in some cases, knowing that you’re dealing with wetlands?
January 9, 2012, 5:57 pmAbdul Abulbul Amir says:
The problem is that the feds have for all practical purposes taken your land.
.
January 9, 2012, 6:39 pmMalvolio says:
The plaintiff lawyer claimed about $270,000.
Or that.
I don’t know about if this counts at the other side, or articulating it, but I was thinking: What if a policeman tells a pedestrian to “move along”. If the pedestrian fails to move along, he is subject to arrest for “failing to obey”. Of course, a judge may not convict him — indeed it’s unlikely he’ll even be charged, just taken down to the station and hassled — but there’s no way for the pedestrian to obtain any kind of judicial review without first putting himself at legal risk.
Of course, the scale of the risk being contemplated in the real case is much greater but it seems analogous. We certainly don’t expect the Supreme Court to expect that every instruction of every patrolman to be subject to timely judicial oversight.
January 9, 2012, 7:09 pmEBL says:
http://evilbloggerlady.blogspot.com/2012/01/supreme-court-takes-up-idaho-property.html
This is a no brainer. Hasn’t anyone seen Ghost Busters?
January 9, 2012, 7:29 pmHouston Lawyer says:
Why don’t we give all law enforcement this option? If you don’t stop “name your pet peeve” immediately, we will fine you $75,000 per day if we some day file a claim against you.
January 9, 2012, 7:33 pmBob from Ohio says:
For liberal control freaks, that is a feature, not a bug.
January 9, 2012, 7:38 pmKelly Haggar says:
Stewart for the EPA made a serious factual error in his oral argument and another legal error in his brief.
(1) Oral. The EPA has the final say on extent and jurisdiction of wetlands, not the Corps. Civilletti AG opinion from 1979. For example, the EPA has recently twice reversed the Corps on navigability of waters, Los Angeles River and some place in NM. Both times the Corps decided a river was non-navigable and the EPA reversed, making them navigable. So, had the Corps issused a dry JD in response to and after-the-fact application, that would NOT have ended this case. The EPA could have simply overruled the Corps’ “dry” call.
(2) Briefs. Read Fn 2, 3, 4 and compare them to Heser (an EPA ALJ case) and these cases and comments:
Fn 2 is wrong; the EPA has indeed attempted to hold the position that “every day is a new violation” but many courts, including the US Supreme Ct [Gwaltney v. Chesapeake Bay Found., 484 U.S. 49 (1987)], have rejected it. Note that Gwalteny did NOT overrule Hamker v. Diamond Shamrock Chem. Co., 756 F.2d 392, 397 (5th Cir. 1985). Thus, it’s not just the 9th Cir which has rejected the “every day is a new day” theory. The 5th has rejected it as well and the Supremes agreed.
Moreover, the EPA’s own Ad Law judges have conclusively rejected that position. See In the Matter of Robert J. Heser and Andrew Heser, Docket No. CWA-05-2006-0002, December 19, 2007. (Pay particular attention to Fn 11 on page 6. ALJ leaps in shorts of EPA lawyer for putting words in mouth of witness . . . . )
Obviously Fn 2 and Fn 4 are mutually exclusive with Fn 3. If “every day is a new day” then the 5 years can’t BEGIN to run until the fill is removed.
See also US v. Scruggs, 2009 U.S. Dist. LEXIS 15425 (S.D. Tex. Feb. 26, 2009), available at: https://ecf.txsd.uscourts.gov/doc1/17918711521 or http://docs.justia.com/cases/federal/district-courts/ texas/txsdce/3:2006cv00776/483977/40/0.pdf
Moreover, Schiff for the Sacketts picked up on the “violation continues and SOL does not BEGIN to run until fill is removed” argument during his oral.
January 9, 2012, 10:39 pmLIVE AT FIVE – 01.10.12 : The Other McCain says:
[...] The Abysmal Incompetence Of The Non-Romneys Hot Air: William Daley Packs His Bags For Chicago The Volokh Conspiracy: Sackett Oral Argument Early score: Sackett 9, not out; EPA no-ball Powerline: Americans Fear Obama Re-Election PJ Tatler: [...]
January 10, 2012, 5:00 amChris Travers says:
In summary, “It’s not really an order. It’s more of a warning.”
January 10, 2012, 6:17 amChris Travers says:
My thought was:
If you are trying to say judicial review is inadequate, you want to portray executive power as extraordinarily far-reaching and so this track by the defense makes sense.
But when I saw Malcolm “the FEC can ban books” Stewart argued this case, something told me this would not end well…..
January 10, 2012, 6:31 amJustin says:
I think some people here would be surprised at how common the EPA’s practice is, and how far-reaching this case can be. For instance, the reason you can no longer get energy drink-style Four Loko is because the FDA issued an unreviewable Warning Letter demanding that the manufacturer remove all Four Loko from the market.
I haven’t read the briefs or followed the case, but I assume the EPA’s position was/should have been that the EPA’s actions did not constitute “final agency action” under Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) and Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986), and constitutes a preliminary, procedural, or intermediate agency action or ruling which is not directly reviewable until there is “final agency action.”
The FDA issues hundreds of warning letters a year and takes the position that none of them are reviewable. I think, if you asked them, they would say that a mere threat by a prosecutor that they will bring or continue to pursue substantial criminal charges against you unless you agree to plead guilty to lesser charges and accept a penalty while waiving judicial review is not judicially appealable either; as the Third Circuit said in US vs. Stolt-Nielsen, being indicted, even wrongfully, is one of the responsibilities of citizenship.
January 10, 2012, 8:56 amKelly Haggar says:
Cost/time to get a wetland permit (I think these are only plain vanilla, not after-the-fact ones) as cited by Scalia early in Rapanos:
“The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 – not counting costs of mitigation or design changes. Sunding & Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74–76 (2002).”
January 10, 2012, 9:23 amEW1(SG) says:
Since “the other side” doesn’t have what I consider an articulable argument; No.
January 10, 2012, 11:12 amStephen Lathrop says:
When you use that line of reasoning, I think that is the way it is supposed to work.
Never mind that that is not even what happened. Alito leaves out the part where Sackett filled the wetland.
January 10, 2012, 11:29 amTuesday round-up | says:
[...] Times, Robert Barnes of the Washington Post, Joan Biskupic of USA Today, Jonathan Adler of the Volokh Conspiracy, Jesse Holland of the Associated Press (via the Los Angeles Times), Sean Cockerham of McClatchy [...]
January 10, 2012, 12:51 pmKazinski says:
What wetland? It’s a .6 acre lot bounded by two roads on the ends, and a two other houses on the sides. And where is the “significant nexus” to the waters of the United States? I don’t think the EPA, can even come close to meeting this burden:
January 10, 2012, 1:19 pmThe Drill SGT says:
Kazinski says:
Stephen Lathrop: Never mind that that is not even what happened. Alito leaves out the part where Sackett filled the wetland.
What wetland? It’s a .6 acre lot bounded by two roads on the ends, and a two other houses on the sides. And where is the “significant nexus” to the waters of the United States? I don’t think the EPA
I had a hard time figuring that out as well. The lot was inland(uphill) from a lake and the lakefront lots were built out.
It’s in a subdivision with sewers. Shouldn’t the EPA’s beef be with the developer for fraud or the County for zoning?
why does a half acre lot owner get the brunt of this?
January 10, 2012, 1:32 pmGringoSalado says:
He filled the wetland?
This is a residential lot in a developed area sandwiched between existing, developed lots.
Apparently a wetland is whatever the EPA says it is.
January 10, 2012, 2:27 pmDan Hamilton says:
Check the neighbors connections to the EPA.
Somebody didn’t want a house built on that lot.
999 of a thousand people would have folded these didn’t.
That’s were to look for the reason the EPA did it.
Hope the EPA gets shafted. They have been shafting people for years. They lost the ability to do good many years ago. Now they are the enemy of the people and a waste of money.
January 10, 2012, 10:04 pmSCOTUS Justices Ask Tough Questions of EPA in Sackett Case | Idaho Eminent Domain says:
[...] the courts with thousands of these kinds of cases if review was to be granted, but many legal observers believe that the EPA will lose on this specific fact pattern. Even if the Sacketts win at the [...]
January 11, 2012, 6:11 pm