Not entirely unexpected, the US Supreme Court sided with the Sacketts in a unanimous 9-0 decision, allowing the landowners to appeal the EPA's compliance order, which they risked risk fines up to $75,000 per day if they did not restore the property pursuant to an EPA work plan. Importantly, this decision does not affect the wetland delineation, nexus or discovery process, but only if the Sacketts can appeal the fines and have their case heard by an impartial federal judge. During the Supreme Court case, they were represented by the Pacific Legal Foundation and backed by the National Association of Home Builders, the U.S. Chamber of Commerce, General Electric amongst others.
“The Sacketts may bring a civil action [under the Administrative Procedure Act] to challenge the issuance of the EPA’s order,” Justice Antonin Scalia said in a statement announcing the court’s decision. “The APA provides for judicial review of final agency action for which there is no other adequate remedy in court,” he said.
Despite the Sackett’s victory, and eventual administrative review, this case was only tangentially about wetlands from the beginning, and it is now clear that the threat of fines in order to keep individuals or corporations from violating the Clean Water Act has been weakened substantially. Deep pocketed violators can tie up enforcement in an endless cycle of appeals, reviews and delays. Recall GE’s 30 years of stalling the cleanup of PCB’s from the Hudson River under the Clean Water Act.
In a previous post, a quick search of the USGS Wetland Mapping site revealed that there is a strong possibility that wetlands are present on the Sackett’s land. Despite their victory, it seems likely that the appeals judge will determine that wetlands are on their land, but It does not seem likely that the EPA has a strong desire to vigorously enforce restoration or mitigation.
In Justice Samuel A. Alito Jr’s opinion, he broached the perennial problem of defining a wetland, stating "Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands, .... but only clarification of the reach of the Clean Water Act can rectify the underlying problem."
A problem for another day, hopefully one with a better outcome for wetlands.
A round up of the best articles and sources below: