A Right to Sue the Government (Just Not Corporations)

On Wednesday, the Supreme Court issued its decision (.pdf download) in Sackett v. EPA, holding that the plaintiffs are entitled to judicial review of an EPA compliance order issued under the Clean Water Act.

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 Supreme Court, in a unanimous opinion written by Justice Scalia, has now reversed the Ninth Circuit’s decision. The Court held that the EPA order constituted a “final agency action,” of which plaintiffs could seek judicial review under the Administrative Procedure Act.

The justices’ concern that plaintiffs not be denied a judicial remedy against government regulation in this case stands in stark contrast to the plethora of recent cases in which the Court has denied plaintiffs a judicial remedy against corporate malfeasance. While Justice Alito waxed indignant in his concurrence about the “unthinkable” denial of due process the Sacketts experienced, he had no difficulty voting with the majority to deny such due process to plaintiffs who suffered physical injury from generic drugs in PLIVA v. Mensing, female workers who were discriminated against in Walmart v. Dukes and Ledbetter v. Goodyear Rubber & Tire Co., or consumers charged fees for “free” phones and held to unconscionable contract clauses in AT&T Mobility v. Concepcion.

It also bears noting 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. By allowing pre-enforcement review of orders under the Clean Water Act in Sackett, the Court has opened the door to similar review of Superfund order authority, making it increasingly more difficult for the EPA to do its work on multiple fronts. And although the Sacketts are two private citizens, the holding in this case will provide major benefits for corporate giants like General Electric seeking to challenge EPA orders.

By allowing the Sacketts to get court review of the order, the ability of the EPA to enforce timely compliance with the Clean Water Act is hampered. Further, this ruling could lead to future challenges by corporate interests of other important environmental regulations, such as the Clean Air Act and Superfund.