Mar 232012

Chantell and Michael Sackett have won their Supreme Court case with nary a dissent. All nine justices agreed that the Idaho landowners should be allowed to challenge the Environmental Protection Agency's Compliance Order in court.

There were, however, two concurrences, from the left and the right of the court.

Justice Ruth Bader Ginsburg said she was with her colleagues so long as it was clear they were not taking any position on whether the Sacketts can challenge the terms and conditions of the Compliance Order itself. Considering that the court was saying that the landowners can contest EPA's jurisdictional call, it's not clear how that helps the agency, but here's what she said:


Faced with an EPA administrative compliance order threatening tens of thousands of dollars in civil penalties per day, the Sacketts sued “to contest the jurisdictional bases for the order.” Brief for Petitioners 9. “As a logical prerequisite to the issuance of the challenged compliance order,” the Sacketts contend, “EPA had to determine that it has regulatory authority over [our] property.” Id., at 54–55. The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion.

Then Justice Samuel Alito weighed in, using language that, at least to this casual observer of the Supreme Court, seemed to be more politically minded than one usually sees:

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 regarding the reach of the Clean Water Act.


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