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Friday, January 6, 2012

Corporate Court To Hear Argument in Clean Water Act Case

On Monday, the Supreme Court will hear argument in the case of Sackett v. EPA, in which the ability of the EPA to compel compliance with environmental laws is at stake.

The Sacketts bought a half-acre of land in a wetland area and, without seeking any environmental permits, filled it with dirt and rock in preparation for building a home. The EPA issued an order against the Sacketts to restore the property to its prior condition on the grounds that the land was wetlands protected by the Clean Water Act. The Sacketts went to court to seek court review of the EPA order before the EPA had an opportunity to bring an action in court to enforce the order.

The U.S. District Court for the District of Idaho dismissed the case on the grounds that judicial review of the order was improper. The Ninth Circuit affirmed the lower court’s dismissal. The Sacketts claim that denying them court review of the EPA’s order against them violates their due process rights under the Constitution. The EPA counters that there is no due process violation because the Sacketts can get court review once the agency seeks to enforce the order against them.

It is important to note that the Supreme Court recently denied the certiorari petition of General Electric in General Electric v. Jackson, a case very similar to this one challenging the constitutionality of administrative orders under Superfund. If the Supreme Court allows pre-enforcement review of orders under the Clean Water Act, it would likely follow that Superfund order authority would also be subject to such review.

If the Supreme Court allows the Sacketts to get court review of the order, it will hamper the ability of the EPA to enforce timely compliance with the Clean Water Act. Further, such a ruling could lead to future challenges of other important environmental regulations, such as the Clean Air Act and Superfund.  

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