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Thursday, December 15, 2011

Supreme Court to Hear Argument in Environmental Dispute (Sackett v. EPA)

In January, the U.S. Supreme Court will hear oral argument in a case involving governmental enforcement of federal environmental laws against private property owners.  In Sackett v. EPA, a property owner challenged the EPA’s use of so-called “administrative compliance orders.”  The EPA uses these administrative orders to allege that a property owner is in violation of an environmental law provision and to demand that the owner bring the property into compliance.  The Supreme Court will decide whether a property owner can immediately go to court to challenge the EPA's order or whether the owner must wait to challenge the order until after the EPA sues the property owner in a civil or criminal action. 

The case involved a challenge to an EPA compliance order that asserted that the Sacketts had violated the Clean Water Act when they filled in a wetland on their property without a permit.  The compliance order required the Sacketts to remove the fill material and restore the property to its original condition.  The owners requested a hearing before the EPA, which was denied.  The Sacketts then filed a lawsuit with the district court claiming that the compliance order was arbitrary and capricious, violated their due process rights, and was unconstitutionally vague.  The district court dismissed the Sacketts' case.  On appeal, the Ninth Circuit affirmed, concluding that the Sacketts were not entitled to pre-enforcement judicial review of the EPA compliance order. 

The question presented to the Supreme Court is deceptively simple - Is a property owner entitled to judicial review of an EPA administrative compliance order?  The issues surrounding that question, however, are far from simple and have kept quite a few environmental advocates and opponents (and their lawyers) busy.   In fact, 14 amici briefs were filed in support of the Sacketts, including briefs filed by the National Association of Home Builders and the American Civil Rights Union, among others.  A common theme among these briefs is the assertion of a conflict between these environmental laws and the Fifth Amendment right that no person be deprived of property without due process of law. 

Those of us who work in the land use field are very interested in seeing how the Court will resolve the alleged conflict between environmental protection and property rights. 

We will keep you posted on this case.  For more information about this case, visit Scotusblog.


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