Nov 272011

Solicitor General Donald B. Verrilli Jr. has filed the government's brief in a wetlands enforcement case to be argued before the Supreme Court Jan. 9 (Sackett v. EPA, 10-1062).

The Sacketts' lot in Priest Lake, Idaho

In the brief, docketed with the court Wednesday, Nov. 23, the United States contends that Chantell and Michael Sackett, Idaho landowners who filled a half-acre of wetlands on their Priest Lake property with dirt and rock in preparation for building a home, "have no constitutional right to immediate judicial review" of EPA's 2007 compliance order requiring them to remove the fill and restore the wetlands to their original state.

"Petitioners cannot be subjected to civil penalties for violating the order unless and until a court determines that a CWA violation has occurred and considers the statutory factors bearing on the appropriate penalty amount," the government brief says. "Although the risk of civil-penalty liability might deter some persons from engaging in discharges that would not actually violate the CWA, that potential deterrent effect would exist even if EPA had not issued a compliance order because the Act itself imposes liability for unlawful discharges. Petitioners have no generalized constitutional entitlement to an advisory opinion assessing the legality of conduct in which they wish to engage. Petitioners, moreover, face a choice between complying with the order and defending against a possible enforcement action only because they discharged fill on their property without first seeking a permit or consulting with EPA or the Corps. If petitioners had sought a permit, they could have obtained a final agency determination on the question of CWA coverage, and immediate judicial review of that determination, without exposing themselves to potential penalties."

Compliance orders "fall within the broad range of communications that agencies use to in­form regulated parties of governing legal requirements and existing violations, to encourage voluntary compli­ance or remedial measures, and to initiate consultation between the agency and the regulated person," the government 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. A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regu­lated parties, by discouraging interactive processes that can obviate the need for judicial action."

In addition, the compliance order is not "final agency action," the brief said. Here's the excerpt from that section of the government's summary of its argument:

The compliance order is not “final agency action.” See 5 U.S.C. 704. A Section 309(a)(3) order marks only a step in EPA’s decision-making process, not its consum­mation.  The order invited petitioners to contact EPA if they believed that the allegations in the order were inac­curate or that the specified compliance measures were infeasible. Even if petitioners failed to implement the specified measures, moreover, they could be subjected to monetary sanctions for violating the order only if (a) EPA commenced a Section 309(b) enforcement action against petitioners, and (b) the court in that suit deter­mined that petitioners had violated the CWA as well as the order.  The order therefore did not have the kind of concrete legal consequences that generally are neces­sary to constitute “final agency action.” See Bennett v. Spear, 520 U.S. 154, 177-178 (1997); FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-243 (1980) (Standard Oil).


Pacific Legal Foundation (representing the Sacketts)

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