On March 29, 2012, the US Supreme Court decided Sackett v. Environmental Protection Agency, an important, but limited, victory for property owners. Although the decision concerns the scope of review under the Administrative Procedure Act (APA), it also implicates the Due Process Clause and acts to remind Congress of the Clean Water Act's substantial ambiguity and the Environmental Protection Agency's resulting unrestrained view of its jurisdiction.
The case involved Michael and Chantall Sackett, who bought a 0.63 acre parcel in a residential neighborhood in Priest Lake, Idaho. Separated from the lake by a house and road, the Sacketts planned to build a house on the property. They obtained the necessary permits and put down gravel, and that is when the Environmental Protection Agency (EPA) came to call.
The EPA claimed that the Sacketts's property was "wetlands" subject to EPA jurisdiction under the Clean Water Act (CWA). The EPA issued an "administrative compliance order" to the Sacketts instructing them to stop construction, remove the gravel, replant the land and give EPA inspectors unlimited access to the property. The Sacketts faced penalties of up to $37,500 per day for violating the law and another $37,500 per day for violating the order.
Believing their property was not a "wetland," the Sacketts asked for a hearing from the EPA, but the agency declined. Represented by a public interest law firm, the Pacific Legal Foundation, the Sacketts sued in federal court. They claimed that the APA required judicial review of the order and, if it did not, then the order violated due process.
The EPA moved to dismiss the Sacketts's claims, arguing that its administrative compliance order was not "final agency action" subject to review under APA. The EPA also asserted that the Sacketts could not obtain judicial review of the order, or even the question of whether the EPA had jurisdiction, until the EPA filed a civil enforcement action against them. Thus, according to the EPA, judicial review of such order could lie months, if not years, in the future, if it were to occur at all.
The district court agreed with the EPA, and the US Court of Appeals for the Ninth Circuit subsequently affirmed the district court's judgment. The Supreme Court unanimously reversed. The Court's decision, written by Justice Scalia, is straightforward. The APA guarantees judicial review of "final agency action," and the order clearly met this standard because it was the consummation of an agency decision making process that determined rights and obligations from which legal consequences flow. Moreover, the fact that the government denied the Sacketts's request for a hearing meant that there was no further agency review available. The Sacketts also had no other realistic avenue to obtain court review. They could accrue penalties of $75,000 a day waiting for the EPA to bring a civil enforcement action, or they could spend significant sums seeking a permit from the Army Corps of Engineers.
Finally, the Court concluded that there was nothing in the CWA that precluded the presumption of judicial review in the APA. The Court held "there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review even judicial review of the question of whether the regulated party is within the EPA's jurisdiction."
Justice Alito concurred to send a direct warning to Congress regarding the CWA. The CWA prohibits the discharge of pollutant into "navigable waters." The statute defines "navigable waters," rather unhelpfully, as "the waters of the United States." According to Justice Alito, the combination of this uncertain boundary and the draconian penalties in the CWA meant that the EPA could, in practice, define its own jurisdiction and property owners were left with little alternative to do what the EPA wanted. The Court's determination that the APA allowed property owners to sue was "better than nothing," but "only clarification of the reach of the Clean Water Act can rectify the underlying problem."
The Sacketts's story is unfortunately representative of the experience of many property owners when it comes to dealing with the government. The EPA here used a poorly written statute and the possibility of astronomical fines to expand its jurisdiction and bully property owners into doing what it wanted with no meaningful opportunity for judicial review. This is precisely the sort of unrestrained government coercion that the Due Process Clause was designed to prevent, yet the EPA and numerous lower courts believed this system of "sentence first, trial later" did not violate the Constitution. While the Supreme Court's decision at least gives property owners the chance to contest the EPA's exercise of jurisdiction, even that conclusion is based on a statute that Congress could repeal at any time.
In this case, prior to the Supreme Court's decision, all three branches of our government acted together to create a procedure under which the government could force Americans to comply with ruinous government orders on the promise of judicial review sometime far in the future. Without the opportunity for immediate judicial review, however, no court should have upheld the constitutionality of administrative compliance orders. The order here violated not only the Due Process Clause, but eight centuries of Anglo-American legal tradition as well. In the Magna Carta itself, the English barons restrained King John's ability to deprive them of their property by requiring that the barons first be provided adequate process before the Crown could act. Until last week, however, too many in our government viewed twenty-first century Americans as deserving of fewer procedural protections than thirteenth-century Englishmen.
As in other areas such as eminent domain and regulatory takings the constitutional protections for property owners broke down in the face of governmental appeals for efficiency. The combination of bureaucrats seeking power and judges willing to abdicate their duty to enforce the Constitution led to the government treating property owners as obstacles to be overcome as quickly as possible instead of citizens deserving dignity and respect. Justice Alito is right that the Sackett decision is better than nothing and it is an important step in the right direction. However, this case demonstrates that much more work needs to be done before property owners can feel confident that agency personnel, members of Congress and the federal judiciary will recognize the rights to which they are constitutionally entitled.
William Maurer is the Executive Director of the Institute for Justice Washington Chapter. He has led several challenges to governmental action and has become a nationally recognized litigator on behalf of free speech. He filed an amicus curiae brief [PDF] in Sackett on behalf of the Institute, urging the Court to permit judicial review of the EPA order.
Suggested citation: William Maurer, Sackett v. EPA: The EPA and the Due Process Clause, JURIST - Hotline, Apr. 2, 2012, http://jurist.org/hotline/2012/04/william-maurer-epa.php.
This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org