On March 21, 2012 the Supreme Court issued its opinion in Sackett v. Environmental Protection Agency (No. 10-1062). Over the government’s objections, the Court unanimously held that property owners are entitled to their day in court to challenge compliance orders issued by the EPA under the Clean Water Act.
The Sacketts own a 2/3 acre residential lot in Bonner County, Idaho. Their lot is situated near Priest Lake, but is separated from the lake by several other lots. When the Sacketts began construction of their house by filling in parts of their lot, the EPA issued a compliance order that required them to undo what they had done and restore the lot to its previous condition. Failure to comply subjected the Sacketts to a fine of $75,000 per day. They sued, claiming that the EPA had exceeded its authority under the Clean Water Act and that its order was subject to judicial review under the Administrative Procedure Act. Both the district court and the Ninth Circuit Court of Appeals held that the agency’s compliance order was not subject to judicial review until the agency itself initiated enforcement proceedings in court.
The Supreme Court reversed. Its unanimous opinion makes it clear that EPA compliance orders are final agency actions that have real legal consequences, not the least of which are the heavy daily penalties that begin to accrue as soon as the order is issued. As Justice Scalia pointed out in his majority opinion, the government simply wanted to put the Sacketts between a rock and a hard place. If the Sacketts cannot initiate the judicial review process, “each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability.” The unanimous Court declined the administration’s invitation to put citizens so completely in its power, at least in this context. “The position taken in this case by the Federal Government – a position that the Court now squarely rejects – would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.” (Alito, concurring).