Antonin Scalia

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's "Sackett v. EPA: How One Couple's Battle Against the Feds Might Protect Your Land."

NEXT: Brickbat: Now Breathe Out

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  1. 9 - 0? Color me shocked.

    I wonder if Eric Holder will be revisiting his comments that you can get all the due process you need at the agency level, without any need to bother a judge.

    1. He won't bother to listen to the judges who made this decision.

    2. I wonder if Barack Obama will be appointing an Administrative Compliance Czar.

      1. Isn't this already a "legitimate" role within the Obama administration? Sunstein!?

      2. Four more years, and he'll probably just appoint about ten more judges to the supreme court.

        1. Hell, FDR couldn't get it done during the great depression. There's no way this lightweight will pack the court.

          1. Unfortunate drone accident.

    3. Yeah. Mind. Blown.

      This should nip in the bud any left wing idiocy on the subject. Don't get me wrong, there will be bitching, but they can't use the usual "five conservative justices" bullshit.

    4. It's not that surprising. Judges requiring judicial review. That kind of self interest can overcome any ideological barrier. (And yes, obviously I agree with the decision.)

      1. You'd think that would be the case, but the judiciary rolls over and plays dead surprisingly often these days - team often trumps branch.

  2. When your federal agency is so out of control Elana Kagen bitch slaps you over it, you might have a problem EPA.

    1. The problem is the one Andrew Jackson gave them: Sure, the EPA is not complying, but how are the justices going to make it stick? There are a zillion EPA regulations and regulators (not to mention other agencies): How quickly do you think you can get them into court while your bank account is bleeding?

      1. You are correct. But they will usually follow the Supreme Court. If it had been a lower court, they would have ignored it outside of that district or circuit. But they generally don't give the Court the finger, yet.

        1. You mean like DC giving the Court the finger over Heller?

          Rule of law my ass.

          1. My experience is that federal agencies generally try to follow the law, even if they do try to bend it. I have never seen or heard of a federal agency saying "just fuck the Supreme Court precedent".

            And even DC, actually does issue licenses, which is more than the used to do. So they are not totally ignoring the court. And I have no doubt they are going to get slapped down over their obstructionism soon enough.

            1. I have far more doubts than you, it seems, John.

              1. They will. The courts will make them change. And they will bitch and moan. But it will happen.

                1. Don't they generally continue on their chosen path until they start having "money problems"? The supreme court ruling seems to stiffen the spine of conservative legislators.

                  1. Congress can cut funding, but they won't.

                    1. Don't have to cut! Just threaten to cut....

                2. The problem isn't the EPA, specifically, it's our whole shadowy and arbitrary regulatory regime. If the EPA is forced to roll back their authoritarian tactics I expect the IRS, the NLRB, Commerce, or some other random Executive branch enforcers will suddenly and coincidentally take an interest in the very same situations the EPA happens to be targeting.

                3. "The courts will make them change."

                  Stop paging MNG.

        2. The point I was making was about the delay between the issuance of the order and when the party gets their day in court.

          If your business has been shut down for "environmental protection", I am betting it is going to be pretty tough to get a local judge to lift the order pending your day in court. And the EPA probably has enough lawyers to get the matter delayed for years.

          1. Sure. And those lawyers do not want to be held in contempt.

            1. "Held in contempt", by whom, exactly?

          2. It really depends on whether or not the judiciary will issue an injunction or other temporary protection while it considers the alleged defects in the regulatory action. If the court denies the injunction (usually because there is little likelihood of success or the absence of prejudice from enforcing the regulatory action or because the petitioner has waited too long and the regulatory action is fiat accompli)then yes, the defendant-petitioner is royally fucked. OTOH, if the defendant-petitioner gets the injunction, the regulatory agency has ever incentive to process the case ASAP.

        3. A president, particularly one up for re-election, has a lot more to lose by defying SCOTUS than does the DC city council.

          1. Yes Tonio. And also, they are not going to run afoul with the courts over this. It just isn't that big of an issue in the grand scheme of things.

      2. Yep. Due Process is only for people who have the cash to afford it.

        1. Isn't this the same argument they were making in favor of birth control mandates?

      3. Nobody's bank account is bleeding. The "compliance order" doesn't levy a fine, which was why the govt was arguing it shouldn't be subject to review.

        If the govt attempted to freeze/drain one's bank account, one can get an injunction from a federal judge ordering the bank not to comply, no?

        1. Sorry to disagree, but practically speaking, a compliance order quickly becomes either a fine or a legal bill if you decide to fight it. The wheels of justice are rather slow to turn through the regulatory swamp, all the while, your life is on hold, and you bank account is dwindling.

    2. Somewhere Tony(s) is/are on the floor curled up in the fetal position.

      "no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no...........

      1. The image you have produced has brought me great joy today.

      2. If you're including me in this, you might want to check my postings on this thread.

        1. I can distinguish clearly the pure poetry of Tonio from the nitwittery of multiple Tony(s).

  3. Unanimous! Too cool. Now I might be able to do something with some Chesapeake land I have. (Probably still can't, but I can dream, right?)

    1. OH! I'd love to hear this story...

  4. 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.

    NICE! Score one for the good guys.

    I didn't think the Supremes would take lightly the idea that they should mind their own bidness and let the grownups at the agencies handle the big, scary problems.

    1. And, that's why it was 9-0. This is the judicial branch protecting its turf.

      Which is pretty much the way a government of coequal branches is supposed to work.

      Now, if only the Justices will carry this attitude over into their "deference to the legislature" cases. . . .

      1. Now, if only the Justices will carry this attitude over into their "deference to the legislature" cases.

        It would be even more welcome if the legislature could find the box they keep their balls in and screw them back on.

        Nah, whinging about just how HARD law giving is, is much more preferable.

      2. Yeah, this wasn't about property rights, this was a territorial dispute between the EPA and SCOTUS.

        That SCOTUS happened to be in the right on this one is just a bonus.

      3. Now, if only the Justices will carry this attitude over into their "deference to the legislature" cases. . .

        Those are cases where rational basis scrutiny applies.

        That clearly was not the case in Heller or Citizens United, which both used heightened scrutiny.

  5. SCOTUS smackdown, FTW! Suck it, regulators.

  6. It is sad that this required a Supreme Court ruling, but I'm glad it came down 9-0.

  7. This is why I'm more hopeful than others that SCOTUS will turf Obamacare. I know it's a different case, but...9-0.

    1. You might want to have that bottle of bourbon handy.

      1. I suggest Rowan's Creek.

        1. FUCK THAT! If it is sustained, go straight for the rot-gut; don't worry about healthcare, you'll pay for it one way or another.

        2. I think that SCOTUS ruling in favor of Obamacare, like they almost certainly will, is going to require an entire bottle of Bookers.

  8. Does anyone else feel like the Supreme Court has been much better lately?

    1. Told ya!

      1. She hasn't been helping much. She wasn't even on the court for Heller.

        1. If Kagan can only be "urged" to recuse for PelosiCare......

    2. No. Because it hasn't. As RC said, this is just them protecting their turf.

      1. Heller? McDonald? Citizens United? I'd count this too, because I don't really care if they're just doing to protect the judicial branch.

        1. You will note that this was 9-0, whereas the others were mostly 5-4.

          Lawyers don't like it when you try and take away their power.

          1. I'm confused what your point is... Yeah, I'm sure that protecting their turf was a factor, but it went the right way. Why is that bad?

            1. It's not bad, it's just not a sign of "good things" from the Court, is my point. This is not something that says to me that they will vote positively in the future, it is just them protecting their turf.

              1. But, Epi, them protecting their turf is them protecting the Constutional scheme of divided government of coequal branches.

                The alternative is supine bootlicking of the executive and the legislature.

                Sure, they may get some individual decisions wrong, but on the whole, I think judicial turf protection is a good thing.

              2. I dunno epi, Obama's managed to thoroughly piss off the court, which is amazing since he freaking got two of them their jobs. This can be a good thing when Obamacare comes to court.

                1. He only picked Episiarch because Eeyore was taken, so you have to bear that in mind.

                  1. When he started here, he was a happy-go-lucky guy. This is what we have done to him.

                    1. When he started here, he was a happy-go-lucky guy. This is what we have done to him.

                      I, for one, am far more cynical than I used to be. Which I didn't think could happen.

              3. A perfect example of Milton Freidman's axiom to "make it politically profitable for the wrong people to do the right thing."

                Self-interest is to politics as gravity is to engineering.

        2. I am actually starting to come around to Citizens United. There are PACs surfacing that are bucking the system, and are getting a much larger voice, because people can donate limitlessly to them.

          It has turned the Republican nomination into an absolute madhouse, where the politicians actually have to differentiate themselves from each other and be vetted.

          1. It has turned the Republican nomination into an absolute madhouse, where the politicians actually have to differentiate themselves from each other and be vetted.

            Wow, you're just now comprehending how Citizens United was one of the best thing to happen to our republic in a very long time?

          2. Surprise, free speech is good for politics.

        3. Protecting the judicial branch is what it's all about, and that is a VERY good thing. Between foolish legislators, and a colluding executive (and departmental regulators with delusions of grandeur), a judiciary that insists on staying in the game too is about all we've got on most days.

      2. Protecting their turf is a good thing.

    3. The Court was always bound by the text of the constitution.

      It will jump out of it as much as it can but it will always rubber band back....what sucks is the time frame of these things.

      It can take generations.

  9. lol, the Supreme Kangaroo Court has spoken lol.

  10. Wow, 9-0. So what's the opposite of a nutpunch called?

    1. Happy ending?

    2. Nut munch?

      1. Maybe this is just the reach-around after the fucking they handed down via Kelo.

      2. Nut munch?

        tea bag...

    3. Sexy time with Allison Brie?

      1. For that, I'll hand the EPA a signed confession that I'm operating a spotted-owl slaughterhouse on protected marshlands.

      2. So what's the opposite of a nutpunch called?

        Having your cone licked.

    4. It's called a Rosie Jones, to continue a theme from yesterday.

      1. It's called a Rosie Jones, to continue a theme from yesterday.

        Wow, that sure beats a Rosie Palm!

      2. We'll have to remember this for use again, assuming we get more good news some day.

        1. You haven't been around long, have you?

          Stay a while, and let the cynicism flow through you.

      3. Thanks, Warty. Amazingly, that made it through websense.

      4. Just checking to make sure this photo is still here. It is.

    5. Bar Rafaeli?

  11. You can't be *wrong* all the time, either.

    1. Thank you very much.

  12. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review.

    Oh, horror.

    Now hitch up your britches and apply this line of thinking to the vast law enforcement monster you have helped to create.

  13. Andy Hardy?

  14. Yep, seems like an obvious violation of the separation of powers.

  15. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review.

    Yes, the government seriously argued this: "But if I have to ask permission for it, then it wouldn't be as much fun!!!"

    1. What genius at the SG's office came up with that one?

      "Your honor, we only issue as many orders as we do because we do not allow for due process. If we have to, then we won't issue as many orders. But please, don't take this to mean that every order that we issue couldn't totally pass judicial review."

      1. Sadly RC I can tell you what they were thinking. It goes like this.

        We only issue these order to prevent grave threats to the environment. If we were faced with the expense of litigating every one of these orders, we would be less likely to issue these utterly valid and greatly needed orders. And thus the environment would be harmed and somewhere a puppy would die a horrible death.

        There. Now where is my job at the SG's office?

        1. And thus the environment would be harmed and somewhere a puppy would die a horrible death.

          They're actually getting very close to resorting to this argument. Teh CHILDRUNZ is starting to lack the impact that it used to.

        2. Re: John,

          "And thus the environment would be harmed and somewhere a puppy would die a horrible death."

          Most arguments in favor of extrajudicial government activities go along those lines, unfortunately.

          1. I don't know if you know this, but Obama actually mandated backup cameras in motor vehicles starting in 2014. I think they put the measure on hold, but the argument at the time was that 144 children die a year from being backed over.

            1. And mostly backed over by their own parents, no doubt. Talk about evolution in action!

      2. Every argument that Holder's office has come up with that I have noticed has been to allow unchecked power to an executive agency without any measure for accountability. Why should this one be any different?

        1. Well, to be fair, these arguments could be defended as "defending Executive turf" against the Judiciary, which is a good thing Constitutionally, just as defending Judiciary turf or Congressional turf is considered part of the balance of powers. When two branches, or all three, begin aggressive aggrandizement of power in "defense" of their turf, things get bad for the subjects of the government.

    2. Yes, the government seriously argued this: "But if I have to ask permission for it, then it wouldn't be as much fun!!!"

      I remember getting in a huge argument with some left wing environmental nut over at

      anyway i ended up winning the argument but his parting shot was that his side had all the right poeple moved into all the right positions...meaning that the agencies like the EPA were filled with left wing nuts juts like him.

      This explains why agencies like these have no respect for individual rights like due process.

      They are not drone work a day bureaucrats but are in fact full blown crusaders bent on saving mother earth.

  16. Awesome ruling. Another great blow for freedom from this session.

    1. Agree. Good decision.

  17. the Supreme Court declared that these EPA actions must be subject to judicial review.

    But... but... what about the birds?

    1. We should be fine!

      Turn! Turn! Turn!

      1. We should be fine!

        You couldn't be more wrong.


  18. How many 9-0 nutpunches has the SCOTUS given team Obama now? They are surely setting a record for the most unanimous decisions against them. I suspect we should not stop counting.....

    1. It's pretty bad when you appoint two judges can't get a single vote.

      1. In 2008 I pointed out to several lefty friends some of the over-the-top, radical shit that obama has done and what it indicated about what kind of person he was and what kind of president he was likely to be.

        Their response? "He is a good man!".

        1. "He is a good man!"

          I think he probably does sincerely care, and thinks he's doing the "right thing." He wrongly views the federal government as a charity organization. If only he had a clue that the "right thing" doesn't involve the Government.

          1. The impression I get is that he is an evil narcissist seeking supreme dictatorial power x100. So, yeah, he does sincerely care....about that.

            Look at his minions. Sunstien publishes a book with the thesis that the american people arent smart enough to know what is best for them so top men like sunstien should be empowered to choose for them.

            1. (damn character limit)
              Holder wants to brainwash us to his way of thinking about guns and puts in place an operation whose goal is to have people murdered by gangs of thugs so that they can justify disarming us.

              His lovely wife wants to be able to dictate what, when, and how much you get to put in your mouth.

              Jennings has no problem with child rape and publishes a book advocating 'queering' american grade schools.

              Bloom, manufacturing czar, who says that the 'free market is nonsense.'.

              The Obama administration is a fucking freakshow. I could go on all day making that list. This guy is a 'good man' in the same way that I am a flying reindeer.

    2. Yeah, but weren't these regulatory rules put in place prior to Obama taking office? This isn't a slap in Obama's face, it's a slap in the face of the Executive Branch in general. And IMO, that's better than just slapping down this dumbass administration, because it'll have staying power when the next dumbass, be he (or she) Team Blue or Red, takes office and wants to expand the power of his apparatus of agencies.

      1. The EPA could only pursue its course of action at the discretion of its boss.

        I doubt it was a big enough deal back in 06 for it to have come up for Bush, so I don't think I can really put the blame on him for this one.

        1. You can put the blame on him for this one just as much as the current administration, since it was his EPA that started this shit and perpetuated it for over 2 years. And yes, Obama's admin could have ended it any time in the last three years, but much of the case was handled with the Bush EPA as the defendant, so they don't deserve anything but derision either.

          IOW, fuck the executive branch's overreach regardless of who's in charge. All they care about is power at the expense of the other branches and the people.

          1. I agree with your general premise here, but dispute your placement of blame on the previous administration. I'm not really a Bush fan.

            All I'm saying is stupid shit like this takes a while to garner media attention. The President has a lot of shit on his plate at any given time, usually whatever the media's focusing on at the moment. I don't recall the Sackett case getting jack shit for attention at any time prior to the past year, -maybe- two, and only then because it was going to the Supreme Court.

    3. I don't know. It seemed like Nixon got a bunch of unanimous decisions against him.

  19. I wonder how this ruling will effect, if at all, the proposed regulations expand Clean Water Act jurisdiction to include non-navigable waters?

    1. You'll probably have to wait 6 years for a case to wind through the courts as the EPA stands there with their fingers in their ears going, "I can't hear you! I can't hear you! Doesn't apply! Doesn't apply!" to the Supreme Court.

    2. It may have a tangential effect. This decision has nothing to do with the merits of any particular regulation vis-a-vis the Clean Water Act. However, if those regulations are expanded, then the EPA issues them a compliance order, the affected party can petition for judicial review of that compliance order before actually being assessed a fine.

  20. This is a good decision, but the holding is pretty narrow. That the CWA does not preclude judicial review under the APA does not exactly strike a blow against the EPA's regulations themselves, nor does it say much about due process (the court did not reach that issue). The Sacketts still have to go back to District Court, where they may still lose. But Alito's concurrance is interesting because he is basically telling congress to get their shit together and amend the CWA to clarify "waters of the United States." Shit, congress, you've had 30 years and you still can't do it? Fuckers.

  21. So, in my reading, requiring judicial review of these orders will likely result in the creation of a whole new system of "environmental courts" that will specialize in the review of this sort of thing. I can't see where this could possibly go wrong.

  22. Can this affect the Individual Mandate case?

    The fines were not "implemented" in this case, and the Judges still ruled. The fines for the Individual Mandate have not been implemented yet. They seem similar from a laymans perspective.

  23. Note to everyone who claimed the sackett's were getting due process with the epa compliance orders: because fuck you, that's why.

  24. By the way, I'm hopeful this will open up the king county "critical ordinances law" which essentially does what the epa did to the sackett's, but to every rural property owner in king county, writ large.

  25. Shit... when it rains heavily in my area, my front yard is a temporary wetlands, and sometimes the WHOLE yard.

    Maybe I'd better not say that out loud.

    1. That does not make it "wetlands," and even if it were, that does not necessarily make it subject to the CWA.

      1. Don't be so quick on that... in the peoples republic of taxachusetts, if the water table is closer than 18 inches to the surface for 6 months of the year, your dry land is "wetland".

        1. Of course, none of this has anything to do with the decision at hand.

          But on the bright side, since it does suggest that an agency can not hide behind "regulations" that can't be contested, I can see a whole shipload of TSA litigation coming down.

        2. You need to look at a nautical chart of Boston Harbor. On the west bank of the Harbor about where Little Italy is located, the water is marked with a special color and there is a special note that the water in this area is NOT considered to be "navigable waters of the United States", because of a specific Federal law, probably passed back when Tip O'Neill was in charge. This part of Boston was his district, and he didn't want to stop re-development of the area, so he got the CWA fixed for his constituents.

  26. Abolish the wages system

  27. What about the issue of the E.P.A. Being involved in private property when it comes to people wanting to remodel their home. Absolutely overstepping government at it's finest! I sure wish somebody would take THAT issue up with the Supreme Court.

  28. I believe that Ginsberg said, "Bailiff, whack his pee pee!"

  29. This is so obvious that it's extraordinary that the government (even this government!) chose to litigate it. All the Court said is that an Agency order is subject to judicial review. This shouldn't have required even ten pages; a simple "Duh!" would have sufficed.

  30. What happens now? Do these people get any kind of recompense from the government from being denied the use of their property for these years? Who paid their legal fees? Will they end up just getting harassed again by the EPA or other agency and actually fined? It's great that they won and all, but I have to be suspicious that they didn't take a severe financial blow regardless.

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