Supreme Court to hear case of dream home quashed by EPA

Estimates are the permit process could take years and cost as much as $200,000.

“The compliance order has deprived the Sacketts of the only permitted economically viable use of their property,” wrote Damien Schiff, a lawyer with the Pacific Legal Foundation, a conservative public-interest law firm that is representing the Sacketts.

“The Sacketts have been afforded no review of the compliance order, but instead have been kept in a state of limbo and uncertainty, never knowing if or when EPA will bring an enforcement action or whether they will ever obtain meaningful review of the compliance order,” Mr. Schiff said in his brief.

Solicitor General Donald Verrilli, representing the EPA and the Obama administration, said EPA administrative orders are not subject to judicial review.

Why a compliance order is different

A compliance order is a way for federal officials to give regulatory guidance to a property owner and encourage voluntary compliance with the agency’s request, he said.

“Courts have widely recognized that, when agencies issue such communications, a recipient who disagrees with the government’s legal or factual assessments generally has no right to immediate judicial resolution of the disagreement,” Mr. Verrilli wrote.

If they had sought a permit before filling the land, then they could have obtained judicial review of the EPA’s permit determination without facing the risk of fines, the government brief says.

For their part, the Sacketts maintain that there are no wetlands on their lot and that the EPA lacks jurisdiction to file its administrative order against them.

“In this case, the original compliance order was issued in November 2007, and since that time the Sacketts have been afforded no review. There is no post-issuance administrative process and no judicial process that the Sacketts can initiate,” Schiff said in his brief.

“The process that produces the order is entirely secret, with no notice given to property owners like the Sacketts,” he added. “There is not even a ‘probable cause’-type hearing.”

No one else to blame?

Government lawyers say the Sacketts have no constitutional right to an immediate judicial review of an EPA compliance order. They say that despite government threats, no penalties are actually assessed against a noncompliant party until a federal judge determines that a violation has occurred.

In a recent blog, Larry Levine of the Natural Resources Defense Council said the Sacketts had only themselves to blame for their administrative troubles. “They chose to cut corners, and when they got caught, they blamed the EPA,” Mr. Levine wrote.

“The [Sacketts say] they had no reason to believe their property included a wetland and, therefore, never sought a wetland permit,” Levine said. “Yet, in documents secured through the Freedom of Information Act, Chantell Sackett herself described her property as including wetlands and being surrounded by wetlands on three sides.”

The case is Sackett v. EPA (10-1062). A decision is expected by next summer.

Previous

1 | 2