Justice Actually Can Prevail

The monster that is the Environmental Protection Agency has just received a big slapdown from the United States Supreme Court. The EPA, using its huge resources, entrenched bureaucratic mentality, seemingly endless ability to spend the taxpayers money and determination that it is a law unto itself lost a true David versus Goliath battle. A family which refused to be intimidated by Leviathan won.

I’ve written on this topic twice before, each time with the hope that this brave couple, Mike and Chantell Sackett would be able to fight on until they won their battle to re-establish the very American proposition that your land belongs to you, not to the federal government and a gaggle of environmental fascists. You can review the underlying facts of the case here: Sacketts vs EPA. So this post is actually more celebratory than the previous two.

In a nutshell, the case involves a small parcel of land which the Sacketts had purchased so they could build their dream home in the Priest Lake region of Idaho. After pulling all the proper permits and complying with all environmental regulations imposed by the local, regional and state authorities, the Sacketts began to build. After the Sacketts had graded the land, laid the foundation for the house and erected some of the walls and support structures, the EPA came in, ordered the construction to halt forthwith, and ordered the Sacketts to dismantle what construction had been done and return the land to its natural state as a protected wetland.

The idea that the land was a protected wetland came as a total surprise to the Sacketts and every agency involved except the EPA. The “wetland” amounted to a small portion of the property, not much more than a puddle, which had only come to exist as the result of an unusually wet winter and spring. It hadn’t been there before or during the permit process, and left alone, would dry up on its own eventually. No wetland flora or fauna had yet discovered the puddle. It takes the sharp eye of an EPA bureaucrat to locate such obscure ecological marvels.

This was another example of ecoweenies and federal bureaucrats finding a “problem” to act on in order to make sure that their power intimidates both the objects of the protection orders and anyone else who might dare to think of building on or near the same location. Why is it suddenly a protected wetland? The EPA’s response was “because we say it is.”

What was determined in the Supreme Court decision is that the EPA (and by inference, other federal alphabet agencies) may not prevent injured plaintiffs from challenging the power of the agency early in the proceedings. In order to win by intimidation, the EPA had issued what is called a “compliance order.” Such an order requires that the victims of that order must first comply with all the terms of the order before attaining standing to sue the agency for a reversal of the order. For a family of moderate means, that is a near impossibility.

The Sacketts would have had to pull down all the construction done so far, including re-grading the land to put it back into its “natural state.” Then, and only then, they would have been allowed to challenge the EPA’s determination that their land was a protected wetland. Assuming they won the subsequent suit (no sure thing), they would then be able to start construction all over.

As an additional bullet in the head of the Sackett’s dreams, refusal to obey the compliance order would mean they could spend their limited funds on reversing the construction, then hiring counsel to sue just to get back where they started or pay daily fines of $37,500 until they did comply. The Sacketts chose not to comply, and after unsuccessful appeals, their fines had reached nearly $1 million by the time the case got to the Supreme Court.

The argument in court revolved around the nature of the compliance order, with the issue of the questionable wetlands determination a secondary issue. The EPA contended that a compliance order is only one step in ongoing litigation to make that determination. The Sacketts argued the opposite. And the high court agreed with the Sacketts. Speaking for the unanimous court, Justice Antonin Scalia wrote that the Sacketts had the right to sue to overturn the compliance order rather than obey it at their own expense and litigate further later.

Scalia reviewed the Administrative Procedures Act on which the EPA relied, and found that a compliance order such as the one in this case is so onerous that it comprises a final order, complete with monetary fines. The order requiring the Sacketts to restore the property to its original condition was therefore subject to immediate judicial review, both under the Administrative Procedures Act and the Clean Water Act.

No need for a private citizen to bankrupt himself complying with the order before suing to overturn the agency decision only to get back to where he was in the first place before the arbitrary and crippling order was entered. Scalia added: “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”

Justice Samuel Alito also suggested that Congress amend the Clean Water Act, the Administrative Procedures Act, and similar bureaucratic legislation in a way that would clearly and affirmatively define the limitations of compliance orders while at the same time preventing more arbitrary and capricious actions by federal agencies effectively quashing the right of private citizens to seek redress in the courts at the earliest possible time. Said Alito: “The Court’s opinion is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

The attorney for the Sacketts argued before the Justices that the EPA (and by inference, any other federal agency) is not above the law, nor does any such agency have the right to prevent private citizens from seeking legal redress against the agency when those citizens reasonably believe they are being treated unfairly. He further argued that private citizens should not be required to suffer crippling sanctions without being able to petition the courts to grant redress and protect private property rights pending further litigation. The Supreme Court unanimously agreed.

Although this was an important and unanimous decision, caution must be advised before determining that this battle won a war. The EPA doesn’t like being told it has limited powers, and under this administration at least, it’s likely that it ain’t over ‘til it’s over. Justice Ruth Bader Ginsburg wrote a concurring opinion which pointed out that the underlying issue of whether the Sackett’s property is or is not a protected wetland is not being determined by this Supreme Court decision.

The decision is limited to the right of a private citizen to challenge a compliance order without first having to comply with it. In other words, big government-friendly Ginsburg wanted the EPA to know that she, Justice Sotomayor and perhaps one other Justice might very well be amenable to accepting their determination that the Sackett’s property is in fact a protected wetland if the case should make its way back to the Supreme Court on that issue alone.

I’ll take my victories where I can find them. This was a major limitation placed on the power of irresponsible poorly-monitored federal agencies to harass, intimidate and threaten private citizens into surrendering to unjust federal authority. In order to win the final battle and ultimately the war, Congress must act to severely restrict the now nearly-unlimited powers of the EPA to declare private property off-limits to the citizens who own it. Now you have another reason to elect a conservative Republican majority to Congress in the upcoming general election, as well as kicking The One out of the White House.