Over at RegBlog (an indispensable resource for those interested in regulatory policy), Lewis & Clark Law Professor William Funk comments on the stakes in the Sackett case:
Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, substantial harm to the environment may occur even if EPA eventually prevails. Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end. However, this fear is unfounded. The Administrative Procedure Act is clear that obtaining judicial review of a compliance order does not by itself relieve a person from the requirement to comply with that order pending judicial review. Instead, that Act provides that a person may seek a stay of the order first from the agency and then from the court if the agency denies the request, but that request will be judged on its own merits. For example, with respect to the Sacketts, it is unlikely a court would stay EPA’s order to cease and desist from further damage to the alleged wetlands, but it might well stay the requirement that the Sacketts restore the wetlands until a determination of the validity of EPA’s order. Thus, the judicial review the Sacketts seek would not enable continued harm to the environment during the review proceedings.
One need not view EPA as a rogue agency – or even as Dirty Harry – to appreciate the need for providing a judicial check on agency action. Even in good faith EPA has made errors in the past, and it and will again in the future; after all, it is staffed by humans. Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA officials to ensure that their decisions are based on sound facts and law that will be readily upheld in courts. Absent that incentive, the tendency noted by Lord Acton – that power tends to corrupt and absolute power corrupts absolutely – could lead an agency to rely more on coercion than law. It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.
Here are my prior posts on the Sackett case:
hmonrdick says:
The possibility of judicial review would not, by itself, solve the problem of coercion that is inherent in agency action. As long as bureaucrats have resort to “free” lawyers (i.e. lawyers paid by the Government) while petitioners must pay out-of-pocket for their own legal representation, the coercive effect of economics in agency enforcement will remain. That aspect of coercion can only be mitigated by an amendment to the APA providing that “loser pays.”
January 10, 2012, 10:02 amStephen Lathrop says:
Baloney. Filling a wetland produces continuous environmental damage, day after day, year after year, for as long as you leave it filled.
And in the case of the Sacketts’ wetland, you can forget the “alleged.” In correspondence with the EPA, they themselves acknowledged they filled wetlands. You can read about it in the brief from the Natural Resources Defense Council, which got the Sacketts’ correspondence with a FOIA request to the EPA.
What the Sacketts seem to have asserted, at least at first, is that the EPA does not have jurisdiction, because their wetland is in some way too isolated from waters over which the EPA has jurisdiction. That’s obvious nonsense too. They hired a consultant who told them as much (again, read the NRDC brief). And you can see for yourself by looking at Google Earth, although you have to be able to read a topographic map, and understand what a wetland looks like from above. Anyone interested can Google: 250 Old Schneider Road, Priest River, Idaho. The Sackett property stands out in the overhead view, because of the grey rectangle on it, which seems to be the fill in question.
But you know who can for sure read a topographic map, and tell you what a wetland looks like? An experienced professional excavator like Michael Sackett can do that.
This case stinks. The smarmy PR about the Sacketts and their American dream is completely belied by the fact that Michael Sackett is by occupation an ally of the development interests which support him. He could not possibly have been blindsided by the EPA intervention. He knew what he was doing.
But even knowing that, there is still one interesting question. Was this something Michael Sackett started with on his own, because you can buy wetlands cheap, and he knew how to fill them—and then he picked up support after the EPA made a case of it? Or is it something that was cooked up from the beginning in alliance with some or all of the interested parties who now back the Sacketts and pay their legal bills in the hope of overturning clean water regulations? If it is the latter, can one of the lawyers here please explain why it would not be a criminal conspiracy to violate the Clean Water Act?
January 10, 2012, 11:14 amloki13 says:
Um, while that would be a great boon to corporations with colorable legal defenses, how many individuals would take the chance of paying the government’s legal bills if their attorney told them they had, say, an 80% chance of winning? 85%?
Anyway, back to the main case- after reading the transcripts, I have this to say:
It is usually remarked that oral arguments have very little impact on an appellate case. This might be one of the exceptions. At the end of the petitioner’s argument, I thought the government was in decent shape. But the government’s attorney, as they say, only opened his mouth to change feet. In my estimation, he managed to even lose Breyer. Wow.
I thought it was a close case going in (I thought the EPA had a good technical case, and the petitioners had a good “facts” case), but that was as close to a blowout as I’ve seen in oral arguments in a while.
January 10, 2012, 11:15 amloki13 says:
Mr. Lathrop,
Those are pretty big accusations. It is my experience that public interest groups, even ideological ones, tend to pick decent plaintiffs (well, with the exception of that one PPACA plaintiff… to quote OK, “Ouch.”). Unless you have some evidence more specific than dark conjecture and geokstr-like rants, it is entirely likely that the IJ got involved because the plaintiff seemed sympathetic.
January 10, 2012, 11:38 amhmonrdick says:
Loki13:Um, while that would be a great boon to corporations with colorable legal defenses, how many individuals would take the chance of paying the government’s legal bills if their attorney told them they had, say, an 80% chance of winning? 85%?
Well, since “the Government always wins when justice is done,” why shouldn’t the “loser pays” rule apply only to the benefit of the petitioner and not to the benefit of the Government?
January 10, 2012, 12:14 pmbailey says:
Funny how the government trying to support their agency’s arbitrary rulings didn’t make these arguments. They have me convinced of the rightness of the EPA’s cause. Why weren’t these vital arguments made (unless they are BS).
January 10, 2012, 12:14 pmbailey says:
The FOIA materials I read through contain a report indicating that the portions filled were not wetland. How does that prove the Sacketts knew the area filled was wetland? I realize that environmental types love to steal land from people without paying them but is the truth ever an issue?
January 10, 2012, 12:59 pmloki13 says:
Wait… what? Uh, as an attorney, I *love* your idea. As a taxpayer, not so much.
Do you have any other “full employment for attorney” ideas you’d like to propose and get passed? Like, for real? Have you thought through this concept using basic economics?
January 10, 2012, 1:09 pmDavid M. Nieporent says:
You know you’re dealing with an ideologue when the term “environmental damage” rather than “environmental change” is used. When he starts ranting about conspiracies…
January 10, 2012, 2:33 pmGood Question says:
Loki13: The Sackett’s are represented by PLF, not IJ. (IJ did submit an amicus brief.) The point you make, of course, is unaffected.
Mr. Lathrop: Everything you say may be true, but I’m not sure how it relates to the issue before the court. If the Sacketts are dishonorable people or simply have a weak case, then the court would not have granted them a stay and it will uphold the EPA’s actions under the “arbitrary and capricious” standard. The question is whether the EPA should be able to avoid any judicial review until it decides it wants to extract money from those like the Sacketts (at which point the possible fines would run into the millions).
January 10, 2012, 2:34 pmThe Drill SGT says:
The Lot was in a subdivision with, as I understand it, roads and sewers.
Did the County and the Developer disclose the “wetlands” to potential buyers? Or did the wetlands just surprise everybody.
If the Sacket’s inland and uphill lot was wetlands, you’d think that the lakefront lots were likely also wetlands, but from the photos they seemed built-up
January 10, 2012, 2:36 pmloki13 says:
Thank you for the correction. The PLF and the IJ are, of course, different groups. While I don’t always agree with their positions, they both do valuable (and separate!) work.
January 10, 2012, 2:37 pmSteve says:
In fact, under the Equal Access to Justice Act, any time a court finds that the government’s legal position was not “substantially justified” then the government has to pay the other party’s legal bills.
January 10, 2012, 2:55 pmThe Drill SGT says:
The Sacket’s lot was zoned residential, and part of a subdivision with sewers and roads.
Did the County and the Developer fail to disclose the wetland or was it a surprise to all concerned.
Were the other x number of lots condemned as well? Others were lakefront.
January 10, 2012, 3:52 pmChris Travers says:
It was argued by Malcolm “The FEC can ban books” Stewart, right?
January 10, 2012, 7:13 pmChris Travers says:
First of all, I think “alleged” is fine here because it hasn’t gone to court. The EPA has alleged a violation of law, and that has not been sufficiently adjudicated through adversarial proceedings.
The Supreme Court should side with the Sacketts here and remand this for further review. The question in my mind seems to be whether the APA remedy is sufficient, or whether the court should say that is insufficient to exonerate their due process rights and require full access to declaratory judgement.
On remand, the issues you are raising should be addressed and the court should focus on whether the Sacketts are actually in violation of the clean water act. But they MUST have the opportunity to argue before a court that they are not. Anything else makes a mockery of due process.
January 10, 2012, 7:21 pmneurodoc says:
The New York Times editorialists see this as a one-sided matter and couldn’t bring themselves to recount any facts that didn’t fit the result they want.
http://www.nytimes.com/2012/01/09/opinion/the-sacketts-and-the-clean-water-act.html?_r=1&scp=1&sq=sackett&st=cse
January 10, 2012, 10:59 pmStephen Lathrop says:
I think you have a point with regard to what the Court will probably do. My question is how do you get a useful precedent out of that? If the record on the case shows the EPA dealing with a willful lawbreaker, but trying to negotiate a minimally punitive outcome, how do you square that with a court decision predicated on the notion of the EPA as a tyrannizer of innocent citizens?
Looking at it another way, isn’t this really an attempt to infuse the latter point of view into the law, whether the facts justify it or not? And if it is, how does that differ from using the courts to make policy that ought to be the province of the elected branches?
Please note this, from the National Resources Defense Council brief:
The Sacketts chose not to discuss their case informally, but instead to file suit. That is a record of fairly determined non-compliance with law, but where is the tyranny? Is your answer to that question that the tyranny lies in government regulation of privately owned wetlands? That seems to be the point of view of many commenters on these threads. I think it is probably the point of view of the Sacketts, and the source of their motivation for acting as they did. But arguments over that question are arguments over policy, not questions to be decided by a court.
January 11, 2012, 6:03 amNickM says:
What he has proposed looks like the standard under 42 USC 1983.
Nick
January 11, 2012, 4:32 pmStephen Lathrop says:
For those who insist this case is just about due process, try asking yourself this question: If the Sacketts had availed themselves of the EPA’s invitation to discuss the case informally, and to object specifically to the ACO, what could they have said, and what would have happened after?
They had already acknowledged that they filled wetlands, and that they had been told by their own expert that those were not isolated wetlands, but regulable wetlands. They had not applied for a permit when encouraged to do so, both by their own expert and by the Corps.
The only thing they could do would be to reiterate their point, despite the expert opinion, that the wetlands they filled were isolated wetlands. To which the EPA would have replied with a question: “Okay, so tell us where the water from your wetlands drains?” And every conceivable answer to that question ends with, “…into Priest Lake, and from there to the Columbia River.”
At that point, isn’t the case for due process moot?
January 11, 2012, 4:38 pmDavid M. Nieporent says:
The NRDC seems to be using an idiosyncratic definition of “redress” here.
January 11, 2012, 4:48 pmStan says:
The Sacketts may (or may not, I have no personal knowledge either way) have a stone cold loser of a case on the merits, but that wasn’t the issue. The issue is whether any government agency can give a citizen an order without providing some means for them to seek a timely review of that order. I work for a state agency that has the authority to issue similar orders, but the difference is that any recipient of our orders has an immediate appeal right, as well as the right to seek a supersedeas of our order. Dealing with the appeals can be a PITA, sometimes, but issues like this don’t get left hanging until we get around to some follow-up enforcement.
January 11, 2012, 5:15 pmirina says:
The thing is, at no point in the proceedings do the wetlands
actually seem to have been formally designated as ‘Jurisdictional’.
Yet the EPA proceeded, on the basis of one consultant’s opinion,
to issue an Administrative Compliance Order regarding the situation.
(And, the consultant was not qualified to make the ‘jurisdictional’
call, that is up to the Army Corps of Engineers; all the consultant
could say was that: 1) the property did, by agreed-upon standards,
contain wetlands and 2) the wetlands in his opinion were not isolated. (That is very important from a legal perspective).
As became clear during the DoJ’s exchange with the Supremes,
the EPA has still not done its own ‘due diligence’ in determining
the actual status of the property, and does not need to unless and
until it takes the case to court (which may be never, the ultimate limbo for the property owners). I would think, if an agency issues
a Compliance Order with the stated penalties (PER DAY !), then they
had better have an airtight case against the offenders.
The Supremes were very surprised/offended that the EPA had not made their case in such a manner (which in this circumstance would probably involve a Significant Nexus Determination), and they also did not believe the EPA’s claim that the Order was merely ‘an invitation to talk about the problem’, as argued by the EPA. There was quite a bit of discussion about the formality and finality (again, a legally important term) of the order.
It is also not correct to say that the Sacketts could have gone to the ACOE for a Jurisdictional Determination before beginning their project, and if they felt the JD was in error they could appeal it.
Technically, there are two avenues for appealing a JD : The first is an internal appeal within the ACOE / EPA (good luck with that !) Then,
supposedly, a judicial appeal can be made (if the applicant has the time, money and energy to do so). However, in the case of Fairbanks v ACOE, the Ninth Circuit court ruled that a JD which determined that a property is jurisdictional could NOT be appealed in court, because it did not denote a ‘final agency action’. (Interestingly, a JD which determines that a property is not jurisdictional CAN be appealed in court. Go figure.)
So basically, there are very few avenues of recourse for the average property owner. And bureaucratic sand traps every step of the way.
Nice for those whose paycheck comes from tax dollars; extremely frustrating for those of us with private property who land in the wetlands morass.
The Sacketts did petition for a formal administrative hearing to determine the actual jurisdictional status of their property. They were denied on the grounds that staging such a hearing was ‘too onerous for the EPA’. At that point, they filed their lawsuit.
January 11, 2012, 7:31 pm