Sackett v. EPA; Victory for Due Process and a Check on the Clean Water Act

Sackett v. EPA; Victory for Due Process and a Check on the Clean Water Act
By R Tamara de Silva March 21, 2012

Today the United States Supreme Court ruled unanimously in Sackett v. EPA (10-1062)[1] that Chantall and Michael Sackett may bring a Federal civil action under the Administrative Procedure Act (“APA”) to challenge the issuance of an EPA compliance order that had prevented them from building a home on their land. The importance of this ruling is that it constitutes a victory for due process for all Americans confronted by the EPA with crime.

Congress invents a new crime on average every week for every week of the year.[2] Departments of the Executive Branch have established regulations and rulings that further criminalize innocuous crime (what I mean here by innocuous is “crime” lacking the existence of any wrongful or criminal intent on the part of the alleged wrong-doer). These often esoteric regulations number in the hundreds of thousands. There are steep economic costs to all this rule making and quite often they are borne by ordinary Americans with limited resources-unable to fight a government with comparatively unlimited prosecutorial and administrative budgets. A case that illustrates this well is that of that of the Sacketts.

Keep in mind, the Federal government spends billions of dollars on prosecutions based upon theories of strict liability for obscure crimes honored more in their breach than by their rule often because the crimes lack definition. On example, which is at the heart of the Sacketts case is the Clean Water Act. The Clean Water Act prohibits, “the discharge of any pollutant by any person,” without a permit, into the “navigable waters.” The term “navigable waters” is defined in the Clean Water Act as, “the waters of the United States,” ยง1362(7). The problem, identified by the Court in its ruling today, but has been obvious to so many of us for decades is that no where is the meaning of “the waters of the United States” defined or made clear. Not anywhere.

While ignorance of the law is never a defense for its violation, no American can be apprised of or know, not even the most seasoned and ancient criminal defense lawyer, all the hundreds of thousands of statutes and regulations any American must prescribe his conduct by at all times so as not to run afoul of the law.

In the Sacketts case, a couple in rural Idaho in 2008 were days away from clearing away their land (land which is close to Priest Lake but landlocked), in order to build their home. They had obtained all requisite local licenses and permits. The EPA visited them and announced that they were to cease and desist building or in any way doing anything with their land because it was on Federal wetlands and their affecting their land in any manner would constitute a violation of the Clean Water Act. The Sacketts asked for proof. The EPA pointed them to National Fish and Wildlife Wetlands Inventory. When the Sacketts showed the EPA that their property was not listed as a wetland according to the National Fish and Wildlife Wetlands Inventory, the EPA simply declined to provide any further rationale for its decision. It did however, issue an administrative compliance order stating that the Sackett’s failure to cease and desist doing anything on their land would result in penalties of up to $75,000 per day for violations of the Clean Water Act plus possible criminal prosecution. The Order also required that the Sacketts fence off their property after replacing all the landfill they had cleared, replacing all the vegetation that had been removed, and that they monitor their now fenced in land, that they were not to otherwise touch, for a period of three years. The Sacketts asked the EPA for a hearing on the order but the EPA refused.

Due process would have required that the Sacketts receive some opportunity to be heard by the EPA or some reviewing entity. The Sacketts filed a complaint in Federal court for a review of the EPA’s order under the APA. The Federal court dismissed the Sackett’s complaint (the Ninth Circuit Court of Appeals subsequently affirmed the dismissal) on the grounds that they could not review the order because it was not a “final action” from EPA.

The Supreme Court’s opinion written by Justice Scalia found that the Sacketts did have a right to judicial review of the Administrative Compliance Order because the Order “has all the hallmarks of APA finality” because it imposes legal obligations, states the penalties and other repercussions of non-compliance, and according to the EPA, final in that the EPA did not think it was subject to any further EPA review. Other than coming to Federal Court, the Sacketts had no other means of redress.

The Government argued that allowing judicial review of EPA actions would impede the EPA’s ability to regulate land as efficiently. This is almost like saying that were there a judicial review (a actual check and balance on the EPA), of the EPA’s compliance orders, the EPA would not be able to act with as much unbridled power. Justice Scalia was not impressed by the Government’s logic when he replied that the APA’s presumption of judicial review applies to other agencies and it,

is a repudiation of the principle that efficiency of regulation conquers all. And 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 whether the regulated party is within the EPA’s jurisdiction


My favorite part of the decision was the concurring opinion written by Justice Alito, which ought to comfort property owners having to contend with the EPA, and chastises Congress for the perfectly unclear nature of the Clean Water Act.

Justice Alito writes,

The position taken in this case by the Federal Government–a position that the Court now squarely rejects– would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.

The Sackett’s get to return to Federal court but there is no guarantee they will prevail. This is far better than giving them or anyone else no recourse whatsoever when the EPA seemingly arbitrarily decides to violate an individual’s property rights. Justice Alito,

The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune. Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule re- garding the reach of the Clean Water Act.

Sadly, Justice Alito’s admonishment to Congress will likely go as far as the saying of throwing pearls before swine. Congress ought to pay more thought to what laws it writes. The Due Process Clause of the United States Constitution requires that no one be made to guess, when their life and liberty is at stake, as to the meaning of a criminal statute. Violation of the Clean Water Act carries with it the possibility of criminal prosecution. Laws enforced by the EPA and other departments of the Executive Branch that carry the penalty of a loss of freedom must be absolutely clearly in apprising all of what conduct is prescribed and what is not. All must know what the Government commands or forbids. The Sackett case is an illustration of this but there are only about 300,000 other regulations that may or most likely may not apprise otherwise law-abiding Americans what the Government may or may not punish.@

R Tamara de Silva
Chicago, Illinois March 21, 2012
R Tamara de Silva is an independent trader and lawyer
2. From 2000 through 2007, Congress enacted 452 new criminal offenses.