The EPA Had a Bad Day at the Supreme Court

Yesterday the Supreme Court heard oral arguments in the case of Sackett v. Environmental Protection Agency. At issue is whether the EPA’s use of “administrative compliance orders,” which are essentially government commands issued to property owners, should be subject to judicial review under the Fifth Amendment's Due Process Clause. In other words, when the EPA tells a homeowner to stop building because of a possible violation of the Clean Water Act, does that homeowner have the right to promptly challenge the EPA in court? As Robert Barnes observes in The Washington Post, “Justices across the ideological spectrum appeared troubled by the EPA’s position that Mike and Chantell Sackett do not have the right to go court to challenge the agency’s wetlands decision.” Barnes continues:

The government has said the EPA’s power to issue compliance orders, with its threats of huge fines, is a way to quickly move to stop environmental damage. Allowing polluters to go to court would tie up the agency in litigation.

But several justices seemed to agree with the Sacketts’s lawyer, Damien M. Schiff of the Pacific Legal Foundation, that those subject to the EPA orders should not have to wait for the agency to decide whether to go to court.

“For 75 years, the courts have interpreted statutes with an eye toward permitting judicial review, not the opposite,” said Justice Stephen G. Breyer.

Read the full story here. I made the case for why the Sacketts deserve due process in a column last month.

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  • ||

    Goddamnit, what's happening in the NH primary?

  • Auric Demonocles||

    Dude, we've got more important things to talk about. Like Tebow and whether or not I should try to throw tomatoes at him on Saturday.

  • Ice Nine||

    ...and Katy Perry's tits.

  • Jeffersonian||

    Contaminated by a grizzled parasite known a Russelicus Brandi.

  • Brett L||

    Will the tomatoes have D batteries in them?

  • ||

    It's Gillette stadium, not Fenway Park, dude. Come on.

  • Auric Demonocles||

    I was at Fenway park last Saturday. I almost threw a brick at the UNH players.

  • ||

    You're a UMaine fan? How gauche.

  • Brett L||

    Sorry, I forgot Philly isn't hosting any playoff games.

  • ||

    I'm totally serial, I rely on this site (and especially commenters) for real news and frankly I'm somewhat disappoint.

  • BakedPenguin||

    Other than a couple polls way up in BFE, I think all the others close at 8PM ET - 1 or 2 AM your time. I don't think there's anything to report.

  • ||

    Like Tebow and whether or not I should try to throw tomatoes at him on Saturday.

    The only thing that's gonna get thrown on Saturday is a football, by Tebow, repeatedly, in manner that carves up the Pats' defense like Ted Bundy with a co-ed. This is God's plan. If you think you're going to interfere with it by throwing food . . . well I hope you like lightning, and being struck by it.

  • Pope Jimbo||

    I was going to point out that Bundy actually bludgeoned the co-eds with a chunk of firewood (along with choking them). Then I realized that your metaphor about Tebow "carving" up the Pats was much more apt than I initially thought.

  • ||

    From the Denver perspective, what's nice is that New England's defense is precarved.

  • ||

    . . . your metaphor about Tebow "carving" up the Pats . . .

    I was going to say something to the effect of, "Tebow's gonna cornhole the Pats' defense like Sandusky with a Cub Scout." But then I remembered that class and decorum are the order of the day among Reason commentors.

  • ||

    . . . New England's defense is precarved

    True. If Denver was able to do pass so effectively against the #1 pass defense (Pittsburgh), then things might not bode so well for the Pats' #31 pass defense.

  • ||

    If Denver is going to throw like they did against Pittsburgh, I think New England is going to get scored on a lot more than the last time around, when it was run, run, run.

    Of course, everything hinges on the Denver defense. If they get shelled again, then they're not likely to win.

  • Invisible Finger||

    I understand rooting against someone who is annoying, and I find Tebow annoying. But I find the sports writers/talkers/ etc. who claim/ claimed he's not an NFL-caliber quarterback even more annoying. So I actually want Tebow to win the goddamn Super Bowl.

  • ||

    I understand rooting against someone who is annoying, and I find Tebow annoying.

    Tebow seems like a good guy to me and I like seeing him succeed (I've always loved seeing players defy low expectations). Thing is, though, I have this sinking feeling that he's a Santorum supporter. If that's the case, I will root for any team he's playing against, even if it's the Oakland Raiders.

  • ||

    Of course, everything hinges on the Denver defense. If they get shelled again, then they're not likely to win.

    I think it's just going to be a high-scoring offensive shooting match, which I think will wind up playing to Brady's strengths. New England-41, Denver-34.

  • Mensan||

    I hated Tebow before it was trendy, but I'm a FSU alumnus so that's to be expected.

  • ||

    Matthew 6:v5 and 6
    5 'And when thou mayest pray, thou shalt not be as the hypocrites, because they love in the synagogues, and in the corners of the broad places -- standing -- to pray, that they may be seen of men; verily I say to you, that they have their reward. 6 But thou, when thou mayest pray, go into thy chamber, and having shut thy door, pray to thy Father who is in secret, and thy Father who is seeing in secret, shall reward thee manifestly.

    broad places=gridirons?

  • Old Man With Candy||

    As a dedicated Ravens fan who wants home field for the AFC Championship, I can only pray to Tebow's god that you're right.

  • ||

    Same thing that is happening in every other primary. A bunch of people wishing they had someone else to vote for.

  • Dempy||

  • Fist of Etiquette||

    In other words, when the EPA tells a homeowner to stop building because of a possible violation of the Clean Water Act, does that homeowner have the right to promptly challenge the EPA in court?

    How could that even be a question?

  • Paul||

    Due process gets in the way of saving the planet.

  • Auric Demonocles||

    Allowing polluters to go to court would tie up the agency in litigation.

    I'm pretty sure that they are admitting that right here.

  • Paul||

    You know who else didn't want to be tied up in litigation?

  • ||

    You?

  • Auric Demonocles||

    Wrong, Paul's a masochist.

  • Paul||

    Epi wins. I hate being tied up in litigation.

  • ||

    That's an interesting question. If the Nazis caused damage to your property, and you're a German citizen in good standing, what happens if you sue? Did they have some civil process allowing that, or did they just kill you during the summary judgment phase?

  • ||

    They payed the German in good standing with gold teeth pulled from the skills of dead Jews...

    In the US FDR payed good Democrats with homes and businesses owned by Japanese americans who were otherwise occupied in internment camps.

    This is why the left in the US hold the moral high ground....they are slightly less tyrannical then their European counter parts.

  • ||

    Thank God Tebow has come to restore our moral sense, because that gave me a headache.

  • The EPA||

    Why should we have to bother with proving our case when we are doing such important work? Don't you love the earth?

  • ||

    How could that even be a question?

    Victims are generally required to "exhaust their administrative remedies" before going to court. That means they can't go to court until an agency gives them permission to.

  • ||

    It's possible that all of the improper delegating done by Congress is the chief reason our system is so out of control. Accountability is pretty much dead when it lives in the hands of a faceless and dickless bureaucrat.

  • ||

    The improper delegating is done also because our system is out of control.

    If Congress only dealt with a few small issues, then it would be feasible for them all to be experts on those topics. At the least, the committees could handle it. But no one is an expert on everything, so with the government trying to regulate everything, Congress is forced to delegate.

  • Brett L||

    Please, God, incorporate the right to a speedy trial against administrative agencies. I'll be suing the Tallahassee permitting apparatus the day after the ruling.

  • ||

    The government has said the EPA’s power to issue compliance orders, with its threats of huge fines, is a way to quickly move to stop environmental damage. Allowing polluters to go to court would tie up the agency in litigation.

    Sounds like the government isn't even trying to say it's not violating the 5th Amendment. It's just saying some stuff is more important than Constitutionally-guaranteed rights.

  • Paul||

    This is exactly how I'm reading it, too.

    Yeah, yeah, they have a case and all, but we don't have time to fight it!

  • ||

    That's exactly what it's saying.

  • Paul||

    Allowing polluters to go to court

    I do like this though. You buy a piece of land out in B.F.E., and you decide to put a shed on it, you're now a "polluter".

    http://seattletimes.nwsource.c.....al26m.html

  • ||

    Fuck is local news awful. I had to Google to learn that Julia Patterson was a King County Council member because the Seattle Times reporter was too shitty to tell me that. I had to have this information to know exactly who I was pinning this pile of shit on:

    Julia Patterson of SeaTac said city dwellers have accepted jails, airports, sex-offender housing, traffic and pollution, largely in order to prevent sprawling development across the countryside.

    First, Julia, just because SeaTac is a shithole doesn't mean there aren't non-coerce-y reasons people choose to live in cities. Second, you statist scumbag, have you seen most of this state? There's plenty of empty room.

  • ||

    Yeah, what does land cost on the other side of the Cascades? Can't be much, except maybe in Spokane.

  • Paul||

    The problem, Pro L, is that God isn't making any more of it...

  • Hawaii Iceland||

    Hey, what about us?

  • ||

    Yeah, what does land cost on the other side of the Cascades? Can't be much, except maybe in Spokane.

    Land in Spokane County is cheaper then in Chelan and Douglas County and this is despite the fact that Spokane has a far larger population base and faster population increase over the past decade.

    Spokane county also bases its expansion of its urban Growth area on consumption of land. So if a bunch of houses are built then they expand their UGA, no questions asked. It also uses a 3.5 housing Unit factor rather then a 4 to 6 housing unit factor when calculating its UGA...which basically means that the areas where you can build neighborhoods are in greater supply then in Chelan and Douglas county.

    Eastern Washington is a patchwork of shity vs less shitty smart growth practices and an excellent case study of how planning caused the housing price bubble.

  • Mike M.||

    It's no secret that the federal government is now engaged in what is basically an open campaign of harassment and intimidation against rural residents in the west. Even California isn't immune to it.

    It's my belief that the feds would like to try and seize most of what little land remains out west that they don't already own.

  • Paul||

    Mike, the sad part is, it's not just the feds. It's the state and county governments who are engaged in an open campaign of harassment and inimidation against their own rural residents. See the link I posted above.

  • mr simple||

    The Constitution is not a suicide pact! We have the right people in charge and you have to listen to them!

  • The Government||

    Damn straight! And damm that lousy presumption of innocence, too! Forcing us to prove guilt allows defendants to tie us up in court.

  • ||

    The comments are as usual for the WAPO, entertaining. The best is this

    verdadero
    3:18 PM EST
    More investigation of this uncovers the following story by WRVO and NPR reporter Nina Totenberg "The EPA isn't commenting on the case. But environmental groups, after obtaining records under the Freedom of Information Act, have filed a brief in the case with a different version of the facts.

    "What they got back from their own expert was, 'Yes, in fact, you have wetlands on your property,' " says Larry Levine, a lawyer with the Natural Resources Defense Council. The expert, says Levine, advised the Sacketts "to hold off on doing anything further until you get things settled with the government."

    The Sacketts say that obtaining a permit would have cost hundreds of thousands of dollars, but Levine says there are several ways that individuals like the Sacketts, who have a small project, can easily and cheaply obtain a permit.

    Seven months after the EPA notified the Sacketts that they were illegally filling wetlands, the agency sent the couple a document known as an administrative compliance order. The EPA ordered the couple to remove the fill and restore the wetlands, and noted that they could be subject to fines levied by a federal court. Six months later, the Sacketts filed suit to challenge the compliance order. Two federal courts threw the case out, saying that the order did not itself seek enforcement or penalties and was not a final judgment against the couple. " So what we have here is another example of a Supreme Court that is packed with radical right wingers spouting off for their one percenter buddies about something they want to use as a lever to make the case against the envbironment and in favor of letting people ruin it.

    One percenter, activist court. This guy hits all the notes.

  • Ice Nine||

    It's very pleasing to hear wieners like him squeal. Send a check to Pacific Legal Foundation. Also, fuck Nina Totenberg.

  • ||

    I need pictures first.

  • ||

    Just say no. Trust me.

  • David Snow||

    The EPA's position seems like; if you take a piss in the woods on your land, you have created a wetlands...Come to think of it if I could get the EPA to occupy my piss puddle it might be a good trade off.

  • ||

    Seven months after the EPA notified the Sacketts that they were illegally filling wetlands,

    Way to assume the conclusion, asshole.

  • ||

    I made the case for why the Sacketts deserve due process

    It's a degraded time we live in when such a case has to be made.

  • ||

    Insane. Due process isn't made optional by all of this extraconstitutional bureaucratic bullshit.

  • Mike M.||

    Good, let's hope so. A bad day for the EPA is a great day for the American people.

  • ||

    Allowing polluters to go to court would tie up the agency in litigation.

    Words fail. Allowing criminals to go to court would tie up the police in litigation.

  • Arcaster||

    It's just saying some stuff anything they want is more important than Constitutionally-guaranteed rights.

    Good for the SCOTUS if they rule in the Sacketts' favor, but this still isn't as cool as the sheriffs mentioned earlier.

  • Arcaster||

    Fuck the squirrels. This was a response to Joe M.

  • ||

    See, this "fuck the squirrels" attitude is exactly what's going to get the EPA knocking on your door.

  • ||

    Microaggression!

  • The EPA||

    Our Assistant Deputy Undersecretary for Sciuridae Affairs will be sending a team of men in Mao suits to beat him senseless this week. An appeal can be made to the Sciuridae Administrative Judge, provided it is in person, accompanied by a $50,000 bond and is more than two weeks in advance of the scheduled beating.

  • Number 2||

    "The government has said the EPA’s power to issue compliance orders, with its threats of huge fines, is a way to quickly move to stop environmental damage."

    Isn't that what preliminary injunctions and temporary restraining orders are for? Those have proven to be effective means for stopping immediate damage, and have been used successfully for, say, two or three centuries.Why aren't they good enough for the EPA?

  • ||

    The EPA Had a Bad Day

    Thanks, Damon. As though those fantasy football commercials they play during games didn't implant that annoying song into my head for at least all of Sunday.

  • ||

    The song in your head isn't as bad as the image of the fat guy in the Giants' work out gear on the treadmill stuck in your head. I didn't make that connection until now. Thanks Dagny.

  • ||

    I have absolutely no idea what song you're talking about, and I will probably burn down your house if you change that.

  • ||

    Come on. That song fits right in with Warty's tastes. I strongly suggest he immediately go find it.

  • David Snow||

    “Justices across the ideological spectrum appeared troubled by the EPA’s position that Mike and Chantell Sackett do not have the right to go court to challenge the agency’s wetlands decision.”

    They ought to be concerned. Every one holding public office ought to be concerned. The worm is turning and Americans are starting to take back our country. Every election at every level matters. Know who you are voting for and vote.

  • ||

    This comment makes me want to run out and vote right now. Unfortunately, Florida's not up quite yet.

  • Paul||

    Unfortunately, Florida's not up quite yet.

    Isn't that the best time to vote? To, you know, catch them unawares?

  • ||

    Ron Paul wins! Ron Paul wins!

    I'm tempted to go heckle the convention when it comes until they nominate either me or Paul. Either is fine. We need a bigger house, anyway.

  • Paul||

    Is Mrs. Pro L prepared to take the anti-obesity mantle from Michelle?

  • ||

    Yeah, she's into vegetarian cooking right now.

  • ||

    DIVORCE!

  • Priestess||

    You poor thing. Do you sneak out for meat occasionally?

  • Old Mexican||

    Allowing polluters to go to court would tie up the agency in litigation.


    "It is not like people have rights or something, mind you!"

  • ||

    I think "due process" was changed to "do process". The EPA says they can do it, and that should be good enough.

  • ||

    Allowing polluters to go to court would tie up the agency in litigation.
    --------------------------------------

    And lack of being able to sue the EPA allows the EPA, with an ANNUAL 10 BILLION dollar discretionary budget to bully homeowners who have exactly zero recourse.

    It seems the hope is that the Supreme Court recognizes who the true bully is here.

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