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.