No pre-enforcement review – seem wrong to you? Me too. And those 9 justices, maybe them too.

12 Jan 2012

Photo courtesy of the US Supreme Court

Kevin blogged about 2012 environmental issues and the first one out of the box was the wetland case of Sackett v EPA (transcript here). The case raises a really interesting question about Constitutional process and while the Court won’t rule for months, comments by some of the Justices certainly seem to hold a common sense hostility toward the issue of “pre-enforcement review,” something which has troubled the regulated community for years.

Over four years ago, Mr. and Mrs. Sackett started to build a house on undeveloped land they owned. They had some of the property filled in to do the construction and that’s where things started going wrong.  The EPA issued an order stating that their property was a wetland and directing them both to stop construction and to remedy the harm already done.  The Sacketts disagree with the EPA and have tried, without success, to get a federal court to resolve this.  The case has now gotten to the US Supreme Court which is dealing with (not with the wetland issue itself but) the question of whether whether a property owner can obtain judicial review of an EPA wetland order even though the EPA has not yet brought its own lawsuit. In other words, can the EPA back the Sacketts into having to decide to do what EPA told them to do or risk facing gigantic fines when EPA got around to suing them?

This is called a bar on pre-enforcement review. It comes up frequently in environmental law. CERCLA or the Superfund Act bars some pre-enforcement review  as does the Clean Air Act relating to pollution abatement orders. These bars have been upheld because the idea is that it is more important to get out there and clean something up or stop a discharge into the environment than to waste time fighting about an order. In the context of an emergency cleanup of a spill, that makes sense.

However, the Clean Water Act doesn’t specifically answer the question of whether pre-enforcement review is barred. When the work’s been done and the order is to undo something, the land owner is in the horrible position of having to decide to spend money undoing something they believe is proper or guessing wrong and being socked with thousands, if not millions in fines!

If that seems wrong to you, you’re not alone.  Justice Alito called the EPA’s approach “outrageous” and asked Deputy Solicitor General Malcolm Stewart, representing the EPA, “don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” This umbrage wasn’t limited to the right wing of the Court as Justice Breyer, a Clinton appointee, noted “For 75 years, the courts have interpreted statutes with an eye toward permitting judicial review, not the opposite.”   I’d say it doesn’t look good for the EPA on this, nor should it. This is one they deserve to lose.


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