In a unanimous decision, the U.S. Supreme Court recently sided with landowners who were denied their day in court after the Environmental Protection Agency (EPA) ordered them to stop construction on what the agency said was a wetland.
The EPA had issued a compliance order for an Idaho family to stop construction of its home and restore the property to its former state, saying it was violating the Clean Water Act.
The family had disputed the EPA’s claims that its property was a wetland, but two lower courts ruled it was not permitted to sue the EPA to challenge the order in court.
Instead, the couple would have to wait until the EPA initiated a civil action against them. In the meantime, they faced fines as high as $75,000 per day for noncompliance.
“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,” wrote Justice Samuel Alito. “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.”
American Farm Bureau had filed a brief in support of the landowners, concerned that many of its members could find themselves in a similar situation.
Among its arguments, the EPA said the Clean Water Act established compliance orders as an efficient regulatory mechanism to deal with water quality challenges. Subjecting them to judicial review, the agency said, would defeat this purpose.
In delivering the court’s opinion, Justice Antonin Scalia noted that such orders would still provide efficient regulation in cases where compliance was voluntary, but criticized the principle “that efficiency of regulation conquers all.”
“There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review,” he wrote.
American Farm Bureau Regulatory Specialist Don Parrish said that given the extent of EPA’s reach, it was very important for Farm Bureau to engage on this issue on behalf of landowners.
“We didn’t get the clarity in terms of where EPA can and can’t regulate, but we forced the agency into a position where their decisions are going to get more scrutiny and that’s good,” he said. “It’s going to be more scrutiny by members of Congress and more scrutiny by the courts. However, we still lack the clarity that I think our landowners want.”