The EPA vs. Private Property

Posted: Dec 17, 2011 10:37 AM

Should the EPA be able to control how you use your private property? Well, right now it can, but that is being challenged in the Supreme Court. Over at Reason, Damon W. Root reports that next month, the Court will hear arguments for Sackett v. Environmental Protection Agency.


The case started four years ago when a married couple named Mike and Chantell Sackett received an EPA compliance order instructing them to stop construction on what was supposed to be their dream home near Priest Lake, Idaho. The government claimed their .63-acre lot was a federally-protected wetland, but that was news to the Sacketts, who had procured all the necessary local permits. Their lot, which is bordered by two roads and several other residential lots, was in fact zoned for residential use.

The Sacketts contend that the compliance order was issued erroneously and they would like the opportunity to make their case in court. Yet according to the terms of the Clean Water Act, they may not challenge the order until the EPA first seeks judicial enforcement of it, a process that could take years. In the meantime, the Sacketts risk $32,500 in fines per day if they fail to comply. And complying doesn’t just mean they have to stop building; they must also return the lot to its original condition at their own expense.

Moreover, if they did eventually prevail under the current law, the Sacketts would then need to start construction all over again. By that point they would have paid all of the necessary compliance costs plus double many of their original building expenses. And who knows how much time would have been lost. Where’s the due process in that? The Sacketts understandably want the right to challenge the government’s actions now, not after it’s become too late or too expensive for them to put their property to its intended use.

The Fifth Amendment states that "No person shall be...deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation." But the EPA wants to issue compliance orders without its subjects being able to retaliate via judicial review. And now a couple trying to build a home on their private property are being issued fines and orders left and right. They can't challenge the EPA without the EPA's permission-even if the original compliance order was issued in error. It's good to see that the Sacketts will get their day in court.

As for the EPA, it may not be the largest agency, but when it can control private property while exempting itself from the courtroom, that's still dangerous.