Supreme Court Rules Unanimously Against EPA "Strong-Arming of Regulated Parties"


The Supreme Court handed down a major win for both property rights and due process rights today in the case of Sackett v. Environmental Protection Agency. At issue was the EPA's use of so-called administrative compliance orders, which are government commands that allowed the agency to regulate the use of private property without also subjecting its actions to judicial review. In a 9-0 ruling, with the majority opinion written by Justice Antonin Scalia and separate concurring opinions filed by Justice Ruth Bader Ginsburg and Justice Samuel Alito, the Supreme Court declared that these EPA actions must be subject to judicial review. Here's a key portion of Scalia's majority opinion:

the Government notes that Congress passed the clean 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…. 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.

Read the full opinion here. For more information on the case, see my December 2011 column "The EPA vs. the Constitution" and check out Reason.tv's "Sackett v. EPA: How One Couple's Battle Against the Feds Might Protect Your Land."