Supreme Court to hear oral arguments today regarding an important environmental law case

The Supreme Court heard oral arguments this morning in Sackett v. EPA, an environmental law case in which Mike and Chantell Sackett of Idaho are suing the Environmental Protection Agency (EPA) over an alleged violation of their Fifth Amendment right to due process. When the Sacketts attempted to build a house on property that they purchased in 2005, the EPA determined that what they owned was a wetland, protected under the Clean Water Act, and issued them with an Administrative Compliance Order (ACO) as a means of halting their construction without harsh penalties and fines. Since ACOs may not be challenged in court, the Sacketts sued, claiming that the EPA was denying them due process.

One the surface, this seems like an obvious complaint on the part of the Sacketts, but I examined this issue further in a paper that I wrote for Prof. Rich Pepino's "Environmental Law" course this past semester, and saw that not only does the EPA have a strong case supported by both the law and the facts (and favored by every lower court that has ruled on this issue), but that the implications of a Supreme Court decision in support of the Sacketts would be devastating to the EPA's regulatory capabilities and, indeed, the ability of the federal government as a whole to enforce all sorts of laws.

ACOs are perfectly constitutional because they do not contain penalties in and of themselves. Instead, should the Sacketts violate the EPA's order to stop building their house, the EPA will proceed with a suit against them in federal court - an action which does contain the possibility of penalties, but which the Sacketts may also challenge in the courtroom, thereby preserving their right to due process. Naturally, the EPA uses ACOs as a frequent tool to avoid costly and complicated legal battles. If someone is accused of violating environmental laws, the agency essentially asks them to stop their violation, allowing the violator to come into compliance with the law instead of facing civil or criminal charges in court. A Supreme Court decision in favor of the Sacketts (aside from being incorrect, in my opinion) would seriously disrupt the abilities of the EPA and other government agencies to enforce the law through means other than the costly, time-consuming, and complex federal court system.

SCOTUSblog, an online publication of Bloomburg Law which tracks and analyzes the Supreme Court and its decisions, provides a preview of Sackett v. EPA which, unfortunately, suggests that the Court may side with the Sacketts and strike a severe blow to the EPA. "It is quite rare for the Court to step in under those circumstances, and the temptation is strong to conclude that the Court has granted review in order to reverse." writes the blogger. "The Court has grown somewhat suspicious of the grasp of federal agencies — including the EPA," and this case may give it the opportunity to act where it has been unable to do so in the past. An observer of the argument has also posted that the lawyer for the EPA has been buckling under pressure from the justices - namely Samuel Alito - with respect to EPA's treatment of the Sacketts. The title of his post, "A weak defense of EPA," says it all. 

This case involves a complex and, I think, fascinating legal question with far-reaching implications. Regardless of how the Supreme Court rules, the impact on federal law enforcement with respect to, and apart from, environmental regulations, will be significant.