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  • Supreme Court Rules EPA Orders Are Subject to Judicial Review

    In a landmark decision for property rights law, the Supreme Court unanimously ruled on Wednesday that alleged violations of the Clean Water Act are not precluded from judicial review.

    The decision will allow an Idaho couple to challenge a ruling from the Environmental Protection Agency that sought to fine the couple up to $75,000 per day for a supposed CWA violation.

    The case involved an Idaho couple, Chantell and Michael Sackett, who were hit with massive fines for a construction project on their property, which the EPA deemed “wetlands” as defined by the CWA. They were ordered to halt construction, and told they would be finedx $37,500 each day that the land was not returned to its original state – and an additional $37,500 each day that they continued construction in violation of the order.

    The Sacketts were left with no way to effectively challenge EPA’s order. They sued, arguing that EPA’s position violated their Fifth Amendment protections against seizure of their property without due process.

    The court agreed. “In a nation that values due process, not to mention private property, such treatment is unthinkable,” Justice Antonin Scalia, who wrote the court’s decision, said of the EPA’s position.

    The court did not weigh in on the EPA compliance order itself. Rather, it ruled that contrary to the EPA’s position, compliance orders under the CWA are subject to judicial review under the Administrative Procedure Act.

    Scalia phrased it this way:

    The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of 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.

    In an interview with Scribe, Damien Schiff, a senior attorney for the Pacific Legal Foundation who represented the Sacketts pro bono, identified judicial review as the central issue of the case. “It’s about the right to your day in court,” Schiff said.

    “The great inequity” of EPA’s position, he added, was that it essentially felt that it was above the law. The agency “doesn’t want a federal judge ever to review” compliance orders, he noted.

    Idaho Congressman Raul Labrador (R) lauded the decision in a news release, saying it “safeguards individual property rights against the encroachment of the federal government, a fundamental assurance of our Constitution.”

    But even in the wake of the court’s decision, serious consideration should be given to the state of American environmental law in light of the Sacketts’ experience. Even given the opportunity for judicial review of EPA orders, the cost of such litigation often exceeds even the value of the property at issue. So while Americans now technically have an opportunity to challenge such orders, their de facto ability to do so is still tenuous.

    “Regardless of the outcome of this case,” wrote Heritage’s Paul Larkin in January, “we ought seriously to consider thinking twice before passing another complex federal law that, while noble in its intent, leaves private citizens facing a crushing burden of potential financial liability merely for trying to stand their ground before the federal government.”

    “Private citizens should not be forced into bankruptcy as the penalty for pursuing what has been called the ‘American dream,’” Larkin added.

    Posted in Scribe [slideshow_deploy]

    7 Responses to Supreme Court Rules EPA Orders Are Subject to Judicial Review

    1. Where was Congress with the CGR. Congressional Review Act? Oh yes, they would have had to act within 60 days.

    2. Bobbie says:

      Another exposure of too much special interests favored by (the peoples') unexpected disrespects of unconstitutional government authority paid without consent of the tax payers, causing time and costs on the lives of innocent self sufficient people!

    3. GerrySeaquist says:

      Thank you SC for standing up for the people and sending the EPA where it belongs to some extent at last there is some wwy to halt the emperial position it has been given by obama seeing the Congress would not in cap and trade thank you SC

    4. WakeupAmericaN2012 says:

      Thank you for this encouraging bit of truth that we so need in this time of discouragement. Keep up the good work of reporting the truth.

    5. kikimo says:

      Rogue agencies are taking over America. The EPA, tsa, doing whatever they feel like without oversite. We need to gather forcesvand stop these obvious power grabs, the EPA being the worst. No dissenters in this ruling prove my case, perhaps even the supream court is getting wise to this outrage on the attack on individual freedoms.

    6. ThomNJ says:

      Mark Steyn said it best in an interview that the left-wing in this country does not have to worry about installing a "president-for-life" when they have effectively installed a "bureaucracy-for-life" to control the American people. He called it a soft-coup. I would have to agree. Just think of how many things affect you on a daily basis – rules that you must follow or face some kind of fine or jail time and all from UNELECTED BUREAUCRATS. I still say that the Congress has betrayed America over the last 50 years especially in giving up their Constitutional powers to legislate to these same bureaucrats and to quite a few activist judges.

    7. Pingback: Washington Post: EPA “Earning A Reputation for Abuse” | The Conservative Papers

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