Sacketts Make Case Before Supreme Court, But What Would A Win Look Like?

Sacketts Make Case Before Supreme Court, But What Would A Win Look Like?

By most accounts, it was a tough day for EPA in the Supreme Court on Monday. Although the Sacketts got their share of skepticism from the Justices, the EPA really took it on the chin during the oral argument of the Priest Lake wetland case.

The issue before the court was whether a “compliance order” issued by EPA to the Sacketts for a Clean Water Act violation is immediately reviewable in a court. The Sacketts, who claim that their property has no wetlands and are therefore not under Clean Water Act jurisdiction, argued that there is no easy way to challenge EPA’s compliance order determination that a wetland exists. Moreover, they say, tough Clean Water Act penalties can accrue at a substantial rate. EPA, meanwhile, argues that the Clean Water Act doesn’t provide for an early hearing. Besides, the Sacketts would eventually get their day in court one way or another, and if EPA couldn’t prove their case, there’d ultimately be no penalties.

KEA joined several other conservation organizations in a brief to point out that the Sacketts had ample opportunity to work with EPA and the Corps of Engineers to avoid the compliance order, and unnecessary expense, had they chosen to do so.

At the oral argument, the Supreme Court seemed openly skeptical about the compliance order. Rather than viewing it as a notice, or a warning, which would be followed by an EPA enforcement action, the Justices seemed inclined to consider it an action in and of itself. As such, they hinted that it was a “final” agency decision which should be subject to Court review.

However, Justices were also skeptical of the Sacketts’ argument that they should receive a hearing regarding the compliance order, but also if they were to lose on the wetland jurisdiction issue in the early hearing, they should get another chance to argue their case in a later enforcement case brought by EPA. In other words, EPA would have to prove their wetland case twice.

All of which goes to the real importance of the case. Enforcement of the Clean Water Act is difficult enough for EPA, which is already stretched thin. Compliance orders are designed to be a tool to shortcut formal proceedings – to provide violators with a less formal (and usually less expensive) route to compliance, without going to court and assuming all the risks and expenses that entails. If the Supreme Court finds that EPA’s compliance orders trigger additional hearings or other formalities, it will seriously impact the way Clean Water Act enforcement gets done.

Court watchers and EPA watchers are already speculating as to what EPA might do if the Supreme Court rules for the Sacketts. One guess is that the compliance orders may become less “order-like” and more “warning-ish.” A mere warning, everyone agrees, is not reviewable in Court. Would things be significantly better for the Sacketts if they had received a warning about a Clean Water Act violation as opposed to the compliance order they received? Doubtful. It could, however, delay the actual enforcement of obvious violations, which would also delay cleanup and restoration efforts.

Another guess, and most worrisome to conservation groups, is that EPA will abandon administrative processes and go directly to enforcement actions filed in court. Because of the complexity and expense of doing so, EPA might simply do less enforcement – which could be devastating for the country’s waterways.

Congress, of course, could fix all of this by clarifying what constitutes a wetland, and clarifying procedures. But that isn’t likely to happen any time soon with the current Congress. The Supreme Court’s decision is expected sometime this spring.

 UPDATE 1/13:  For the super-interested, audio of the argument is now available.

 

6 Responses

  1. Shelley says:

    The CAFO owners are doing a happy dance about this case.

    Regardless of what happens, the NRDC brief was a very good thing. You all did your best. Unfortunate that the government dropped the ball.

    I’m curious: has anyone seen the reports from three experts stating the land isn’t Wetlands that the Sacketts have brought up in media interviews? I tried finding a copy, and other than a mention, there’s nothing: no names, no reports, nothing.

  2. irina says:

    OK, so I went to google earth and put in the address on the KEA website ;

    408 East Sherman Avenue, Coeur d/Alene, Idaho.

    Impossible to tell (since it’s now all built up), without access to archival photos.
    But, judging from the location of the KEA offices and the surrounding area,
    it looks suspiciously like that area could easily have been — filled wetlands.
    Rather similar to the siting of the Sackett property . . .

    Have to wonder what would happen if a survey were done of all regulatory
    or environmental offices — how many are located on filled wetlands ?
    (For starters, the main EPA building in Washington DC).

    Here in Interior Alaska, we are prevented from even building infrastructure
    that everyone else in the country takes for granted, because according to the
    ACOE / EPA, no less than 44% of our land base is potentially jurisdictional
    (and most of the rest is mountains). So someone gets to sit in Seattle, or
    Washington DC, in an office built on top of the Denny Regrade Project
    (Seattle) or drained swampland (Wash. DC) and try to shut down important
    projects such as the Northern Rail Extension — which the EPA claimed might
    do harm to ‘scrub willows growing in the braided floodplain of the Tanana River’.

    The government didn’t ‘drop the ball’ in the Sackett case.
    It shot itself in the foot. With its own regulations. Oh, the horror.

    • Terry says:

      For the record, the KEA offices are definitely not on wetlands. But thanks for checking.

      A much more and relevant tool might be the USFWS wetland mapper:
      http://www.fws.gov/wetlands/Data/Mapper.html

      Had the Sacketts or any of their consultants bothered to take five minutes to use the tool, they might have avoided a lot of this legal nonsense. FWIW, Bonner County, where the Sacketts reside, and which has very little in the way of building regulation, now requires anyone proposing to build a house to at least check the wetlands inventory.

  3. irina says:

    Well, naturally the KEA offices are not on wetlands. Now.
    But it is disingenuous to imply that the property they occupy
    was not, at some point in the past (before development),
    property that might now be considered potentially jurisdictional.

    Low property near a lake, with open parkland around it which
    may have been drained back in the day ? Looks like possible
    former wetlands to me.

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