The Supreme Court decided today to take up a challenge to U.S. EPA's authority to issue compliance orders under the Clean Water Act without allowing an immediate hearing on the underlying issue.
At issue are efforts by Chantell and Michael Sackett to build a house on a half-acre parcel near Priest Lake, Idaho.
After they began earth-moving work, the Sacketts were halted by EPA, which said the property fell within the jurisdiction of Section 400 of the Clean Water Act. The landowners were in violation after they placed fill material into wetlands, EPA said.
The order prevented further construction work on the site and required the Sacketts to restore the wetlands.
The Sacketts -- backed by the Pacific Legal Foundation (PLF), a conservative Sacramento, Calif.-based group that focuses on property rights -- filed suit in the District of Idaho, but a federal judge dismissed their request that they be able to contest the order.
The 9th U.S. Circuit Court of Appeals agreed with the district judge's conclusion.
The court held that the Sacketts' due process rights were not violated because those subject to compliance orders have an opportunity to go to court if EPA commences an enforcement action.
The Supreme Court will consider whether the Sacketts' should be able to contest a compliance order before the enforcement proceedings and, if not, whether that would violate their due process rights.
The Sacketts' lawyers argue that the use of compliance orders puts their clients and others in an "impossible situation" because they "must either run the risk of ruinous penalties or imprisonment" or essentially buy their right to judicial review by entering the permitting process.
That could cost $200,000, they say.
PLF attorney Damien Schiff said the case raises important property rights and due process questions.
"When government seizes control of your land and you disagree with the justification, shouldn't you be allowed your day in court?" he said in a statement.
The Obama administration stated in its brief that appeals courts have "uniformly concluded" that the Clean Water Act provisions in question do not violate the due process clause because EPA must file suit in federal court if it wants to enforce compliance.
In some ways, the Sacketts' claim mirrors one made by General Electric Co. over whether it could challenge EPA administrative orders requiring companies to clean up sites containing hazardous materials. Earlier this month, the Supreme Court declined to take up that case (Greenwire, June 6).
The justices will hear arguments in the Sackett case in the 2011 court term, which begins in October.
Court declines campaign finance case
In other court activity today, in what was the last action of the 2010 term, the justices declined to take up a petition filed by the Green Party of Connecticut and the Libertarian Party of Connecticut, which sought to challenge that state's campaign finance laws.
The parties, backed by the American Civil Liberties Union, argued that the law discriminates against minor party candidates by making it hard to win public financing.
The Supreme Court had held the case for several months while it considered another campaign finance case, Arizona Free Enterprise v. Bennett.
In that case, decided yesterday, the court struck down a provision of an Arizona law that provided matching funds for candidates facing a better-funded rival.