The Supreme Court has issued an important decision in Sackett v. EPA. Justice Alito explains the issue:
The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.
The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.
In short: When the Sacketts claimed that their property was not a wetland (and they have a strong argument on the merits), the EPA refused to give them a hearing, and also refused to sue them, and tried to deny them access to the courts on the pretense that their decision wasn’t final yet.
Just to be clear, this administration — which thinks that every terrorist picked up on the battlefield in Afghanistan deserves his day in court — thinks that property owners should have no access to the courts when the EPA prohibits them from using their property. (And yes: the Solicitor General’s office submitted the government brief, so that was literally the Obama administration’s position.)
The Supreme Court didn’t buy it, and ruled 9-0 against the administration.
POSTSCRIPT: This is the second time this year already in which the administration has taken an outrageous position and received a 9-0 rebuke from the Court. In January the administration failed to convince the Court that that the government should be able to dictate ministers to churches.
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