The Volokh Conspiracy
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Chantell and Michael Sackett bought a residential lot in Bonner County, Idaho over fifteen years ago. Their plan was to build a home, but things have not yet worked out that way.
While making initial construction preparations, the Sacketts received an Administrative Compliance Order from the U.S. Environmental Protection Agency, alleging the deposit of fill onto their property constituted an unlawful discharge of pollutants into the waters of the United States under the Clean Water Act (CWA). Part of the Sackett's parcel contained wetlands, the EPA explained, and filling wetlands without a permit is prohibited. Failure to remedy the discharge, the EPA warned, could expose the Sacketts to penalties exceeding $40,000 per day.
When the Sacketts sought to challenge this determination, the EPA claimed the ACO was not subject to judicial review. This prompted a lengthy legal fight, ending with a unanimous 2012 Supreme Court opinion in the Sacketts' favor. The Sacketts would be allowed to sue. [I wrote about the Sackett opinion and some of the broader issues it raises in this article for the Cato Supreme Court Review.]
Litigation over whether the Sacketts' land contains wetlands subject to the CWA continued for several more years until, in 2020, the EPA withdrew the ACO, on the grounds that the agency had decided not to pursue the case "years ago," but the agency did not alter its judgment that the the Sacketts' land is subject to federal regulation under the CWA.
This was the state of play before the U.S. Court of Appeals for the Ninth Circuit, which issued a decision in Sackett v. USEPA last week. The opinion by Judge Michelle Friedland readily dispatched with the EPA's dilatory procedural tactics, but nonetheless ruled against the Sacketts on the ultimate question at issue: Whether their land is subject to regulation under the CWA. Now the question is whether this case will go back to the Supreme Court.
The EPA had tried to argue that its decision to rescind the ACO rendered the case moot. Judge Friedland ably and soundly rejected this argument. The EPA's decision to rescind the ACO did not preclude the agency from taking additional action against the Sacketts and the EPA's action "did nothing to alter EPA's position throughout this litigation that it has the authority to regulate the Sacketts' property." Accordingly, the EPA could not establish that its own voluntary choice to rescind the ACO rendered the case moot. "As long as EPA avoids disclaiming authority to regulate the Sacketts' property," Judge Friedland explained, "the core of this dispute is alive and well." She continued:
[A]lthough we . . . presume EPA withdrew its amended compliance order in good faith, the agency's conduct prevents that presumption from carrying the day. As explained, we are not confident that the agency has permanently ceased attempting to regulate the Sacketts' land. In addition, we note that, although EPA represents that it resolved "several years ago" not to enforce the amended compliance order, it informed the Sacketts of this development only on the eve of EPA's filing deadline for its opposition brief—a deadline we had already extended twice, in response to requests from the agency that had not mentioned any change in the agency's enforcement intentions. If we are to take EPA's letter at face value, the agency caused the Sacketts to litigate crossmotions for summary judgment in the district court, participate in mediation, and then pursue this appeal after the agency had already concluded it would never enforce the challenged compliance order. Forcing the Sacketts to engage in years of litigation, under threat of tens of thousands of dollars in daily fines, only to assert at the eleventh hour that the dispute has actually been moot for a long time, is not a litigation strategy we wish to encourage.
While I found Judge Friedland's consideration of the mootness question exemplary, I have some questions about her analysis of the underlying question of whether the Sackett's property is subject to federal regulation under the CWA. As a threshold matter, Judge Friedland noted that Justice Kennedy's concurring opinion in Rapanos v. United States provides the relevant standard, and therefore wetlands on the Sacketts' property are only subject to CWA regulation if they have a "significant nexus" to navigable waters. I believe this is correct both as a matter of Ninth Circuit precedent as well as relevant Supreme Court caselaw. In Judge Friedland's view, the evidence provided by the EPA suggests that this standard was met, and (not having studied the trial court record) this may well be so.
Where I believe Judge Friedland may have erred is in considering whether the Sacketts' property satisfied the (then-applicable) regulatory definition of "waters of the United States" when considering whether there was a "significant nexus." As the Court held in Rapanos, the EPA's regulations were broader than the CWA authorizes, and thus the Sixth Circuit committed by reversible error by only considering whether the lands in question satisfied the regulatory definition. Put another way, the relevant regulations fail to embody the relevant
Under Rapanos, whether or not the Sackett's property satisfies the regulatory definition of "waters of the United States" does not matter, as the regulations adopted a definition of federal regulatory jurisdiction that exceeded the scope of the agencies' authority (if not also the scope of the federal power to regulate commerce among the several states). Thus, showing that a given property satisfies the regulations does not demonstrate that the property is, in fact, subject to CWA regulation. (The opposite, however, would be relevant, as land insufficiently connected to navigable waters to satisfy the regulatory definition could not possibly satisfy the more narrow "significant nexus" test.)
My concern is that Judge Friedland thought it relevant whether the Sacketts' property fell within the scope of the then-applicable regulations because they were "adjacent to a jurisdictional tributary," when such adjacency was rejected as sufficient to establish jurisdiction in Rapanos. Further, Judge Friedland accepted the EPA's argument that such adjacency was itself sufficient to establish that the Sackett's parcel, when combined with "similarly situated" parcels (i.e. all other lands also adjacent to the same unnamed and nonnavigable tributary), had a "significant nexus" to navigable waters. This analysis seems to accept some sleight of hand, for it takes the factor the Supreme Court concluded was insufficient to establish a 'significant nexus"—adjacency to a tributary—to establish a "significant nexus" through aggregation.
On this basis, Judge Friedland concluded that the EPA "reasonably determined that the Sacketts' property contains wetlands that share a significant nexus" with a nearby lake, rendering it subject to regulation under the CWA. Thus, the Sacketts' are still unable to build on their lot, at least not until they obtain a federal permit.
I strongly suspect the Sacketts will file a petition for certiorari, urging the Court to bring greater clarity and concreteness to CWA regulation that Justice Kennedy's "significant nexus" test provides. Indeed, I suspect the Sacketts will seek to convince the Court to jettison Justice Kennedy's test in favor of something more stringent, such as the narrower test offered in Justice Scalia's Rapanos plurality.
Three of the justices who joined Justice Scalia's Rapanos opinion are still on the Court (Thomas, Alito, and the Chief), and Justice Kavanaugh expressed an affinity for Justice Scalia's analysis in his Maui v. Hawaii Wildlife Federation concurrence. Assuming no one has changed their mind, counting to five would only require picking up Justice Gorsuch or Justice Barrett, so a fifth vote for a Scalia-like opinion would seem to be within reach.
The Sackett case might be an appealing vehicle to reconsider CWA jurisdiction because the Court has seen this case before, and the Sacketts are certainly more sympathetic petitioners than would be large developers or environmental scofflaws (as Rapanos appeared to be). The time could also be right to hear such a case, as a decision on the scope of CWA jurisdiction would inform ongoing efforts to adopt a new regulatory definition of "waters of the United States," as well as the litigation that any such definition will produce.
In the meantime, the Sacketts are still waiting to make productive use of their land.