Erika Johnsen

This morning, the Supreme Court released their unanimous decision on Sackett v. EPA, the egregious case of an Idaho couple being persecuted by the EPA for building on their 2/3-of-an-acre that the EPA deemed protected wetlands. Justice Scalia released the Court's opinion, with Justices Ginsburg and Alito seperately concurring, that private property and due process trump government "strong-arming of regulated parties." And it feels so good.

The issue was actually not over whether the Sacketts were in violation of [totally bogus and arbitrary, hem hem] environmental laws, but rather whether the Sacketts had the right to seek judicial review against the EPA's administrative compliance order, since said order isn't final enforcement action. As Justice Scalia determined, though, "it is hard for the Government to defend its claim that the issuance of the compliance order was just 'a step in the deliberative process' when the agency rejected the Sacketts’ attempt to obtain a hearing and when the next step will either be taken by the Sacketts (if they comply with the order) or will involve judicial, not administrative, deliberation (if the EPA brings an enforcement action)," the EPA's enfocement meaning they fine the Sacketts huge sums amounting to $75,000 every day they aren't in compliance.

Here's another clutch piece of the Court's decision, in which Scalia points out that judicial review is a way to regulate the regulators. Checks and balances, my friends:

Finally, the Government notes that Congress passed theClean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution. Compliance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review. 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. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.

And, just for fun, here's a bit of Alito's EPA-smackdown. Winning:

The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees. The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.


Erika Johnsen

Erika Johnsen is a Web Editor for Townhall.com and Townhall Magazine. Follow her on Twitter @erikajohnsen.