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EPA Defeat in Supreme Court Unlikely to Affect Enforcement of Clean Water Act

Josh Stephens on
May 1, 2012

Since the passage of the Clean Water Act in 1972, when the Environmental Protection Agency told a property owner to jump, in some cases the property owner's only possible response was "how high?" No so anymore. 

Last month, in Sackett vs. Environmental Protection Agency, the United States Supreme Court issued a ruling that places a limitation on how far the EPA can go to compel property owners to comply with the Clean Water Act. 

To enforce the act, EPA officials often issue "administrative compliance orders" to property owners whom it determined were discharging pollutants or otherwise harming wetlands on their property. Chantelle and Mike Sackett had been cited for doing just that and received a compliance order halting their construction of a home near Priest Lake, Idaho. Refusal to follow the order would have come with a fine of $37,500 per day. 

Plaintiffs claimed that EPA policies unfairly prevented property owners to contest these fines. 

"Our main objection was that the EPA was imposing the threat of ruinous fines and even criminal prosecution without any proof of violation or an opportunity to be heard," said Reed Hopper, principal attorney with the Pacific Legal Foundation, which represented the plaintiffs. "There was simply no accountability."

On a 9-0 decision, the Supreme Court held that a compliance order--and the threat of fine--could be subject to a suit because, according to the justices' decision, the agency treated the order as a "final ruling" without any other procedural remedies for the property owners. This ability for a property owner to now sue for a "pre-enforcement review" may give EPA officials pause when issuing compliance orders in the future. 

"I think it's a great step forward for property rights and the rule of law and due process," said Hopper. 

How large a step it really is--and what practical impact it will have--is debatable. 

On the one hand, the ruling is arguably the most significant land-use related ruling since 2005's Kelo vs. New London decision, which upheld the right of governments to invoke eminent domain for the purposes of economic development, and 2006's Rapanos v. United States, which narrowed the scope of waterways and wetlands that were protected under the Clean Water Act. 

(Not coincidentally, some of the ambiguity in Sackett stems from the Rapanos ruling; the Sacketts' property is not technically a wetland but rather falls under the more ambiguous category of "waters of the United States.")

Thus far, Sackett does not appear to have far-reaching legal impacts. 

Many observers note that the ruling was intentionally narrow and applies only to the specific type of compliance order that was at issue in the Sackett case. 

"The decision was very narrow and leaves open to EPA the ability to enforce the law either using  the same mechanism, but also being prepared to go to court, or using different mechanisms and slightly different approaches," said Devine.  

The has not announced any new policies as a result of the decision. 

"EPA will of course fully comply with the Supreme Court's decision, which the agency is still reviewing," said Bill Keener, spokesperson for the EPA's San Francisco office, relaying a statement from EPA headquarters.  

Notably, the Sackett decision does not place any new constraints on the EPA. The burden remains on the landowner to object to EPA compliance orders through litigation. 

"There's nothing in this decision, as I read it, that limits EPA's ability to warn dischargers when the agency believes someone is violating the Clean Water Act," said John Devine, staff attorney in the Natural Resources Defense Council. "If the EPA wants to use that approach, it needs to be prepared to spend the resources to litigate the issue of the discharger's liability under the law when it issues the order."

Hopper, however, said that just that threat of litigation may be enough to prompt the EPA to issue compliance orders more conservatively, or to do more research before issuing orders. 

"What we're after was to try to make, for the first time, the EPA accountable for its enforcement action," said Hopper. "The agency is going to have to do more than just a drive-by type evaluation."

Even so, Hopper said that the ruling is likely to affect only a few of the roughly 3,000 compliance orders that, according to CNN, the EPA issues each year. 

"It will have no effect on that whatsoever," said Hopper. "The only cases that are going to be brought to court are going to be those in which the agency is acting at the margins."

However it affects the EPA's practices, the Sackett decision seems unlikely to rile activists in either the property-rights movement or the environmental movement. Though the Kelo decision did not actually set new legal precedent, it still galvanized property-rights advocates and spawned a slew of new state laws meant to restrict the use of eminent domain. Because the Sackett ruling restricts government power--albeit only slightly--no such response is expected. 

"Here we have a decision that struck down governmental power, so there's nothing for people to react to," said Sean Hecht, executive director of the Environmental Law Center, UCLA Law School. "Government just has to decide how it's going to change how it does business as a result. No one's going to get up in arms about an abusive power based on a decision like this."

Though the EPA issues Clean Water Act compliance orders all over the country—3,000 per year, according to CNN—California poses a particular challenge to EPA officials because of the diversity of the state's wetlands, which do not always adhere in reality to the federal definition thereof. Nonetheless, there appears to be little reason to believe that the ruling would affect California any more or less than it would any other state. If anything, fewer opportunities to issue compliance orders may arise in the first place. 

"The wetlands there tend to be small, vernal pool types….water features that are only questionably subject to control under the Clean Water Act," said Hopper.