In 2004, Michael and Chantell Sackett purchased a roughly half-acre patch of land along a lake nestled in the scenic wilderness of the Idaho panhandle.
The couple dreamed of building a home in Priest Lake, Idaho, and setting down roots in an idyllic vacation destination popular among boaters, hunters and skiers.
But for 17 years, the Sacketts’ property has sat empty as the couple has fought a long Clean Water Act permitting battle that has already made it all the way to the nation’s highest court.
The justices may decide this week whether they want to get involved a second time.
“Our case is a prime example of how the government handles challenges to its edicts: it has the time and a bottomless bag of taxpayer dollars at its disposal to outlast property owners in court,” the Sacketts said in a joint statement. “Not this time.”
The couple has filed a Supreme Court petition, Sackett v. EPA, that calls on the justices to revisit the court’s splintered 2006 ruling in Rapanos v. United States, which birthed two competing tests for determining the scope of Clean Water Act jurisdiction (E&E News PM, Sept. 23, 2021).
Attorneys for the Sacketts say that the couple may be spared from the burden of securing federal permits to build on their property — if the Supreme Court decides to back the narrower test authored by former Supreme Court Justice Antonin Scalia.
The case has a tiny chance of review by the Supreme Court, which hears only about 1 percent of the thousands of petitions it receives each year.
EPA has urged the justices to ignore the Sacketts’ plea: The agency said it would be premature for the court to weigh in while the Biden administration is still at work on a brand-new rule defining “waters of the United States,” or WOTUS — a term that describes wetlands and streams that are subject to federal permitting requirements (Greenwire, Nov. 29, 2021).
A decision by the Supreme Court to hear the Sacketts’ case “would invert the usual order of operations, whereby judicial review occurs after the agency has completed its work,” government lawyers wrote in a recent brief.
EPA declined to offer further comment, since the litigation is pending.
It’s not unprecedented for the Supreme Court to weigh in on an unfinalized rule. Last year, the justices agreed to examine EPA’s authority under the Clean Air Act to regulate carbon dioxide emissions from existing power plants — even though no such rule technically exists, and the Biden administration has said it intends to craft one that is different from its Obama- and Trump-era predecessors (Greenwire, Nov. 2, 2021).
Legal observers have attributed the court’s decision to take on the EPA carbon rule case to the newly bolstered conservative majority on the bench. The firm that is representing the Sacketts — the property rights-focused Pacific Legal Foundation — has previously signaled that it wants the Supreme Court, which is now dominated by six conservatives who may favor Scalia’s Clean Water Act test, to get involved now (Greenwire, April 28, 2021).
“If this were a couple years ago, my money would be on a denial of cert in the Sackett case,” said Holland & Hart LLP partner Ashley Peck. “But this court has signaled more of a willingness to weigh in.”
Vermont Law School professor Pat Parenteau said he questioned whether Clean Water Act jurisdiction is a hot enough issue for the justices to take the type of unprecedented step they did in the EPA carbon rule case.
A better option, he said, would be for the justices to wait until the Biden administration finalizes its new WOTUS rule.
“They can bide their time,” said Parenteau. “They will have the chance to rule conclusively on the scope of federal jurisdiction of the Clean Water Act if they want to.”
A long legal saga
The Sacketts are no strangers to the Supreme Court.
In 2012, the justices heard — and ultimately agreed with — the Sacketts’ argument that they had the right to go to court to challenge a compliance order EPA had issued against the couple in 2007 for filling the Priest Lake property with dirt and rock to prepare the land for construction.
With that victory in hand, the Sacketts returned to the lower courts, where they have slugged it out for nearly a decade for the right to build their home without securing costly federal permits. They estimate they would pay upward of $200,000 to secure permission build on a plot of land they bought for just $23,000.
They ultimately lost.
The Sacketts also faced other legal troubles during that time: In 2015, Michael Sackett was sentenced to a year in prison after pleading guilty to a sex crime (Greenwire, March 31, 2016).
Pacific Legal Foundation senior attorney Damien Schiff said that Scalia’s interpretation of Clean Water Act jurisdiction — which served as the basis for the Trump-era Navigable Waters Protection Rule — would help the Sacketts finally move forward on building their home.
“If the court were to grant their second petition and ultimately rule that the Rapanos plurality opinion should be the law, it would not only help the Sacketts but other landowners achieve relief,” said Schiff, who is representing the couple before the Supreme Court.
In Rapanos, the Supreme Court handed down a fractured 4-1-4 opinion in which a plurality of the justices — led by Scalia — found that the Clean Water Act’s requirements extend not only to waters that are actually navigable, but also to wetlands with a “continuous surface connection” with a jurisdictional water that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Former Justice Anthony Kennedy wrote a concurring opinion that agreed with the outcome of Scalia’s opinion, which overturned a lower court’s decision favoring federal oversight of two Michigan construction projects.
But Kennedy disagreed with Scalia’s reasoning. Instead of requiring a continuous surface connection, Kennedy wrote that a wetland needs only a “significant nexus” — or a substantial impact on the quality — of a traditionally navigable water to be covered by the Clean Water Act.
Federal courts have largely favored Kennedy’s broader Clean Water Act test, which also served as the basis for the Obama administration’s 2015 Clean Water Rule.
The Trump administration gutted the Obama regulation with its Navigable Waters Protection Rule. But the U.S. District Court for the District of Arizona ruled against the Trump regulation last year, opening the door for the Biden administration to design a brand-new rule.
EPA said the new regulation is coming later this year (E&E News PM, Jan. 3).
What happens next?
The justices are scheduled to discuss Sackett v. EPA during their conference tomorrow and could accept or reject the petition by Monday.
If the petition is rejected — as most are — Schiff said the Sacketts would be back to exactly where they were in 2007, when EPA and the Army Corps of Engineers first told them they needed a permit to build on their land. And even if they did go through the expensive process of securing a permit, he said, there’s no guarantee they could avoid future enforcement actions.
“This lot would have been — and they hope still can be — the place of a family home,” Schiff said.
In the event the justices reject the Sacketts’ petition, court watchers largely expect the Pacific Legal Foundation or another group to tee up the Clean Water Act question again, perhaps even before the Biden team completes its new WOTUS rule.
“On one hand, I can see why that is a reason for the court to not take up the case,” said Sean Herman, senior counsel at the firm Hanson Bridgett LLP, referring to the pending Biden rule. “But what we’ve seen since 2015 is no fewer than four WOTUS definitions, multiple lawsuits filed challenging those definitions and tremendous uncertainty.”
He continued: “It kind of begs the question: When is a good time for the Supreme Court to weigh in?”
Parenteau of Vermont Law School said there isn’t enough meat in the Sacketts’ argument for the justices to sink their teeth into the case. The compliance order the Sacketts originally challenged in the Supreme Court, for example, has now been formally withdrawn by EPA.
And the Sacketts’ property may still be subject to Clean Water Act jurisdiction — even under Scalia’s definition, Parenteau said.
“Even if you want to assume the court is looking for a Clean Water Act case,” he said, “this wouldn’t be the one.”
But the Sacketts and Schiff said they remain optimistic that the Supreme Court will want to clear up the confusion that has roiled the water permitting process for landowners and developers in the nearly 16 years that have elapsed since Rapanos was decided.
“Our property is still vacant, and our rights are still violated,” the Sacketts said in their statement. “We hope that the Supreme Court will hear our case and settle the navigable waters question once and for all.”