Monday, January 09, 2012

Sackett v. EPA (10-1062)

This case is being argued before the Supreme Court today...

ENVIRONMENTAL PROTECTION AGENCY, ADMINISTRATIVE PROCEDURE ACT, PRE-ENFORCEMENT REVIEW, DUE PROCESS

After Petitioners Chantell and Michael Sackett began construction on their land, they received a compliance order from Respondent, the Environmental Protection Agency, informing them that their construction project violated the Clean Water Act because it filled in protected wetlands. The Sacketts sought pre-enforcement judicial review of the compliance order under the Administrative Procedure Act, but were denied. The Sacketts assert that Congress intended to provide for pre-enforcement judicial review, and that without such review, the compliance order violates their due process rights. The Environmental Protection Agency maintains that Congress intended to preclude judicial review of compliance orders under the Administrative Procedure Act because compliance orders are not self-executing. The Environmental Protection Agency argues that sufficient procedural safeguards exist under the Clean Water Act to provide adequate review before any penalties are enforced. The Supreme Court's decision will impact the ability of regulated parties to seek review of compliance orders, and will determine what methods the Environmental Protection Agency can utilize to respond to environmental emergencies.

Question presented

Chantell and Michael Sackett own a small lot in a built-out residential subdivision that they graded to build a home. Thereafter, the Sacketts received an Administrative Compliance Order from the Environmental Protection Agency claiming that they filled a jurisdictional wetland without a federal permit in violation of the Clean Water Act. At great cost, and under threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties, the Sacketts were ordered to remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years.  The Sacketts were provided no evidentiary hearing or opportunity to contest the order. And, the lower courts have refused to address the Sacketts' claim that the lot is not subject to federal jurisdiction. Do Petitioners have a right to judicial review of an Administrative Compliance Order issued without hearing or any proof of violation under Section 309(a)(3) of the Clean Water Act?

Read the rest of the analysis here


My previous posts on this case:

Supreme Court case involving Idaho lake house ignites conservative cause against EPA

Idaho Couple's Legal Battle Heads To Nation's Highest Court - video

Mike and Chantell Sackett vs. the EPA

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