The U.S. Supreme Court, in a unanimous March 21 ruling, said that an Idaho couple could legally challenge an Environmental Protection Agency compliance order that told them to restore wetlands on property they had purchased to build a new home.
Construction industry groups say the case is not only a win for landowners, but also for developers and construction firms. “It’s a victory for all people who develop land, not just the small mom and pops” says Tom Ward, vice president of legal advocacy for the National Association of Home Builders, which filed a “friend of the court” brief in the case.
The case was filed by Mike and Chantell Sackett, of Priest Lake, Idaho, who were told by EPA—and the Ninth Circuit—that they could not get direct court review of EPA’s claim that the land they had purchased was “wetlands” and that they would have to obey a “compliance order” requiring them to restore the property they had started to develop to its original state, or pay up to $37,500 a day in fines.
The U.S. Supreme Court heard oral arguments in the case on Jan. 9. The government argued that a ruling in favor of the Sacketts would undermine EPA’s ability to control pollution and the destruction of wetlands through compliance orders.
But the justices rejected the government’s arguments.
In the court’s opinion, Justice Antonin Scalia wrote, “The Clean Water Act does not preclude [judicial review under the Administrative Procedures Act].” He explained: “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming or 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. “
NAHB’s Ward says that construction firms often find themselves in a similar predicament as the Sacketts. They may be working on a site that EPA or the U.S. Army Corps of Engineers decides is a wetland. Before this ruling, firms had little recourse but to comply with the order, or face large fines, he says. “Now they can go to court and say, I don’t think this is a wetland; EPA thinks that it is; court, what do you think?”
Environmental advocates note that the court upheld the right of EPA to issue compliance orders, which they say can be an effective tool in fighting water pollution.
Jon Devine, a senior attorney with the Natural Resources Defense Council’s water program, said in a statement, “The Supreme Court did not give anyone a license to pollute…Those who pollute our waters will still be held accountable.”
The Sacketts were represented by Damien Schiff, a principal attorney with the Pacific Legal Foundation in Sacramento, Calif. Malcolm Stewart, deputy assistant solicitor general at the Justice Dept., represented the government in the case.