Bloomberg News

Clean Water Act Tool Used by EPA Questioned at High Court

January 12, 2012

(Updates with comments from justices starting in fourth paragraph.)

Jan. 9 (Bloomberg) -- U.S. Supreme Court justices voiced concern that the Environmental Protection Agency is overreaching in enforcing federal statutes, signaling that they may blunt a favorite agency enforcement tool.

Hearing arguments today in a case involving an Idaho couple seeking to build a new home, the justices suggested they are likely to rule that people accused by federal regulators of violating environmental laws have a right to immediately take their case to a federal judge.

The case, which has with ramifications for energy companies and manufacturers, may weaken the EPA’s so-called administrative compliance orders. The agency issues as many as 3,000 such orders each year to businesses and individuals, demanding an end to alleged environmental violations and applying so much pressure that those accused typically give in before the agency has to justify the action before a judge.

“Don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” Justice Samuel Alito asked at today’s hearing.

The fight involves a 0.63-acre property near the banks of Priest Lake in northern Idaho. In 2007 Chantell and Michael Sackett had begun preparing the land to build a three-bedroom home, when EPA officials ordered work to halt. The agency said that the property was a wetland and that the Sacketts couldn’t build without obtaining a permit under the Clean Water Act.

Restore Land

The EPA then ordered the Sacketts to restore the land by removing piles of fill material and replanting the vegetation they had cleared. The written order threatened the couple with fines of as much as $32,500 a day.

The Sacketts contend they have a constitutional right to seek judicial review of that administrative compliance order right away. A federal appeals court said the couple had to wait until regulators sought to enforce the order by asking a federal court to impose a fine.

The Obama administration and the EPA argue that the couple has ample avenues short of going to court for contesting the order without risking fines. Among other options, the Sacketts could apply for a permit, the government said.

Justices from across the ideological spectrum today questioned the adequacy of those options and the government’s contention that Congress didn’t authorize judicial review of administrative compliance orders. Justice Elena Kagan called the government’s reasoning “very strange.”

‘75 Years of Practice’

“Why would the presumption of reviewability not apply?” Kagan asked.

Justice Stephen Breyer, perhaps the court’s staunchest defender of the powers of administrative agencies, said the government “is fighting 75 years of practice” with its argument.

The Sacketts say a permit application would potentially cost hundreds of thousands of dollars. An environmental group, the Natural Resources Defense Council, disputes that contention, saying the Sacketts might be able to get an after-the-fact permit for as little as $2,000.

General Electric Co. is supporting the Sacketts as are business groups, including the Chamber of Commerce and the American Petroleum Institute.

GE last year unsuccessfully sought Supreme Court review of a similar provision in the federal Superfund law. Depending on how broadly the high court rules in the Clean Water Act case, its decision might affect the EPA’s power under the Superfund law as well.

The case is Sackett v. EPA, 10-1062.

--Editors: Justin Blum, Laurie Asseo

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.


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