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Thu Mar 22, 2012, 09:30 AM

 

Supreme Court, Led By Judge Scalia, Unanimously Allows Idaho Couple To Fight EPA

upreme Court Unanimously Allows Idaho Couple To Fight EPA
by Mike Sacks
March 21, 2012


The Supreme Court on Wednesday unanimously reversed a lower court opinion that forbade an Idaho couple from challenging an Environmental Protection Agency compliance order that carried with it tens, if not hundreds, of thousands of dollars in potential penalties.

A few months after Chantell and Michael Sackett began preparations to build their dream home just north of Idaho's Priest Lake in 2005, the EPA came calling with an order that they stop and restore their lot to its original condition. The EPA determined that the Sacketts' property contained "wetlands," from which the dirt and rock they used to fill their property would flow into Priest Lake in violation of the Clean Water Act's prohibition on "the discharge of any pollutant by any person" without a permit into "navigable waters," defined in the law as "the waters of the United States." The Sacketts did not believe that their property was subject to the Clean Water Act and brought suit, but lower courts refused the Sacketts an opportunity to fight the order -- and with it, the civil penalties of up to $75,000 per day of non-compliance that they were potentially accruing -- until the EPA itself chose to bring an action.

Justice Antonin Scalia, writing on behalf of the entire Court, allowed the Sacketts' suit to proceed. The government argued that the compliance order was "a step in the deliberative process" over whether to bring an enforcement action against the Sacketts, and therefore not the kind of "final agency action" that would trigger the Sacketts' ability to sue. Rejecting that argument, Scalia wrote that "here is no reason to think that the Clean Water Act was uniquely designed the enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review -- even review of the question whether the regulated party is within the EPA's jurisdiction."

The decision represents a win not only for the Sacketts but also for the libertarian legal community and property rights advocates, who argued that the EPA's previously unchallengeable compliance orders represented the administrative state run amok.


Justice Antonin Scalia wrote for a unanimous Supreme Court in an EPA case.

Read the full article at:

http://www.huffingtonpost.com/2012/03/21/supreme-court-epa-unanimous-decision-clean-water-act_n_1369831.html


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Reply Supreme Court, Led By Judge Scalia, Unanimously Allows Idaho Couple To Fight EPA (Original post)
Better Believe It Mar 2012 OP
ProgressiveProfessor Mar 2012 #1
Lil Missy Mar 2012 #2
Yo_Mama Mar 2012 #3
Nye Bevan Mar 2012 #4

Response to Better Believe It (Original post)

Thu Mar 22, 2012, 09:56 AM

1. At a macro level, this was a good thing

Gov was requiring expensive actions be taken without any form of independent judicial review or prior notice. Whether or not there are wetlands there was not the issue.

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Response to Better Believe It (Original post)

Thu Mar 22, 2012, 09:58 AM

2. This just means they are entitled to judicial review, it doesn't mean they'll win.

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Response to Better Believe It (Original post)

Thu Mar 22, 2012, 11:02 AM

3. Our constitutional system requires

that people have access to the courts.

I don't think the 9-0 decision is a surprise; the EPA was arguing that the Sacketts had no way to challenge their order until the EPA sued to enforce it, but that meant that the EPA was allowed to build up fines in the interim. The implications are that of course most individuals would never get their day in court, because the only way to get it would be to ignore the order and build, thus forcing the EPA to sue eventually (or not). But no bank would lend on such a property. So such an order could be safely ignored (if it were not well-founded) by a wealthy person, whereas it could not be ignored by an average person.

One of the important questions to ask when such arguments are presented is always "Does this make the system work differently for rich and for poor citizens?" If the answer is yes, then there is nothing "libertarian" in deciding that such an argument should not stand. Maintaining equality of access to the legal system is a very important element of our entire system.

The basis of the constitution is a system of checks and balances, and generally the justices tend to act in unison only when that basis is obviously challenged.

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Response to Better Believe It (Original post)

Thu Mar 22, 2012, 11:30 AM

4. Good decision. Let them have their day in court.

I guess even Scalia gets it right sometimes.

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