Supreme Court Backs Homeowners Over EPA

  @DanRivoli on March 21 2012 12:52 PM
Environmental Protection Agency Adminstrator Lisa Jackson
Environmental Protection Agency Adminstrator Lisa Jackson. REUTERS

The U.S. Supreme Court Wednesday sided with property owners in Idaho whose plans for a dream home ended in a battle with the Environmental Protection Agency.

In a unanimous decision, the high court said the Sacketts could challenge in court an EPA clean up order they received for dumping rock and dirt onto their property lot, near a lake, in violation of the Clean Water Act.

Clean up orders are a powerful tool in the EPA's arsenal. It can force polluters to voluntarily mitigate environmental damage quickly without getting tied up in a lawsuit.

Accused violators can fight the EPA's findings once the agency files a noncompliance lawsuit, which could cost the losing party tens of thousands of dollars. Another avenue is to request a permit from the Army Corps of Engineers, then file a lawsuit if the permit gets denied.

But waiting for the agency to drop the hammer or requesting an Army Corps of Enginneers permit are not adequate ways for the Sacketts to get their EPA order reviewed, Scalia wrote.

There is no reason to think, Justice Antonin Scalia wrote in the majority opinion, 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.

The EPA had argued the compliance order was a merely a notice that the Sacketts violated the Clean Water Act and fines would be imposed for failing to remedy the problem. To impose the penalties, which can be as high as $75,000 a day, a judge must approve them.

The Sacketts' case became a cause celebre for the EPA's critics who have tried to hobble the agency, a bogeyman in conservative politics.

Corporate giants and business trade groups, too, heralded the Sacketts' effort. General Electric, which had failed to fight the EPA's compliance order process in a separate case, told the Supreme Court that the Sacketts' case has broad implications beyond the parties involved. Others that supported the Sacketts include the American Petroleum Institute, the U.S. Chamber of Commerce and the American Farm Bureau Federation.

Environmental groups supported the EPA's methods as a way to get big polluters to clean their mess quickly, instead of providing them an opportunity to get high-profile attorneys to fight the compliance order in court.

Scalia, in his opinion, dismissed those concerns.

Compliance orders, he wrote, will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.

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