SCOTUS hits EPA with an epic smackdown on Sackett

posted at 8:40 am on March 22, 2012 by Ed Morrissey

It’s possible to overstate the impact of the Supreme Court’s unanimous decision yesterday on Sackett v EPA, which reversed an EPA compliance order that kept an Idaho couple from building a home on land expressly zoned for that purpose.  As Ilya Somin notes, the court never took up the question of the Fifth Amendment, but rather limited its scope to the Administrative Procedure Act, which means that a Congressional repeal of the APA could undo Sackett, at least temporarily.  As things stand now, however, the Supreme Court has changed the manner in which agencies have to act when issuing compliance orders, which now — despite the Obama administration’s best legal efforts — have to be subject to judicial review before the EPA can start levying massive fines as an extortive device to keep from having their orders challenged.

I take a look at the impact in my column for The Fiscal Times:

The EPA tried its best to keep the federal courts out of the dispute and the Sacketts in limbo, in part by claiming that the agency had not committed a “final agency action,” which would allow the Sacketts to file suit under the Administrative Procedure Act (APA), the aegis under which the case proceeded to the Supreme Court.  The EPA argued that, at some undefined point in time, they might reconsider their demand to the Sacketts for compliance, even though the Sacketts risked double fines (up to $70,000per day) for not reversing their work on the land.

Justice Antonin Scalia scoffed at the argument in the decision writing that “the mere possibility that an agency might reconsider in light of “informal discussion” and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.”

Nor did Scalia and the other members of the court buy the notion that a compliance order was just “a step in the deliberative process … rather than a coercive sanction that itself must be subject to judicial review,” as the Obama administration argued.  Scalia points out that sanctions signal that deliberation has come to an end.  Besides, Scalia wrote for the unanimous majority, the Sacketts had tried to get a hearing with the EPA, which the agency rejected – hardly a sign that deliberation over the issue had much of a chance of continuing.

These arguments represent the arrogance of a bureaucracy that has little interest in oversight, and less in intellectual honesty.  The idea that a compliance order and its accompanying stratospheric fines don’t equal a final result only makes sense from the perspective of those giving the order.  It doesn’t take much common sense to see that a couple trying to build a home on land that didn’t even appear in the EPA’s inventory of wetlands could hardly afford to run up $70,000 in fines each day they didn’t act on a compliance order.

The best part of the opinion — it’s worth reading in its entirety, and not terribly long — came in response to the argument that offering due process on compliance orders would make the EPA less likely to use them.  Scalia noted wryly that Congress seems to have intended that under the EPA: “The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.”

The Obama administration’s argument boils down to the idea that due process and a legitimate appeal process for Americans challenged by agencies is too big a cost for the government, and it shouldn’t have to deal with oversight on its decisions.  Needless to say, that kind of argument won’t ever be popular with any court.  As I mention in the column, the court’s unanimous decision had to have come in part from the offensive notion that citizens were being extorted by massive fines to stay out of court at all.

If the EPA issues fewer compliance orders, well, no one will be crying much about that.  If the EPA has to justify its orders in court rather than just shove them down people’s throats with a threat of $70,000-per-day fines if they try to appeal, even better.  But far better than that would be to get Congress to rein in these agencies and an executive branch that seizes effective control of private property while arguing that no due process applies because efficiency trumps property rights.

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The EPA needs to be defunded. Every state has a similar agency and most large cities and counties also have regulatory control on many of the same apects. The players that regulate need to be a part of the community they function in. As it is it takes at minimum a consultant well acquinted with the agency and sometimes an attorney to even communicate with them.

DanMan on March 22, 2012 at 4:27 PM

The whole notion that government makes good decisions must be terminated and eliminated from the government and societal culture as a whole. They are created by mean spirited government “officials” with a personal axe to grind because of some anecdotal slight the perceive.Government mandates handed down by fiat are by far the greatest danger to Constitutional principles.

These officials should be tried for fraud and corruption.

DevilsPrinciple on March 22, 2012 at 4:36 PM

Bullets are cheaper and more effective.

rjulio on March 22, 2012 at 4:36 PM

Bravo to the Supreme Court, they struck another blow against tyranny with this excellent decision. Oh, and God Bless the Supreme Court for still understanding that WE THE PEOPLE are not supposed to be slaves to our own government.

Axion on March 22, 2012 at 4:42 PM

I think what the EPA had been doing was following what might be terms a New Deal tradition that progressive government is big government and big government can’t be slowed down by meddlesome processes (like rule of law, etc).

The current SCOTUS almost certainly didn’t want to put a stamp of approval on making the court system mostly irrelevant to the administrative state. The implications of that would be enormous as far as the prestige and importance of the Judiciary in overall state of things.

OTOH, it restricted itself to a narrow decision because it does not want to make sweeping pronouncements which unknown consequences, and I think it likely that the conservative members may have wanted to get as many justices agreeing with the decision rather than do something more expansive and have it limited to a 5-4 decision, assuming Justice Kennedy would go along. Unanimous is probably considered pretty decisive while 5-4 is okay conservative vs liberal.

Russ808 on March 22, 2012 at 5:26 PM

This is such a great decision, my pants have been declared a Wetland.
KorlaPundit on March 22, 2012 at 2:46 PM

lol :)

cptacek on March 22, 2012 at 5:39 PM

The EPA argument won’t be popular in any court? It passed muster in the US Ninth Circus Court before going to SCOTUS.

John Hitchcock on March 22, 2012 at 6:09 PM

Add Circuit after the struck word.

John Hitchcock on March 22, 2012 at 6:11 PM

Until today, landowners had no effective means of fighting back against EPA when they believed that the agency had exceeded its authority under the Clean Water Act. But now, a landowner has the right to sue EPA in court to prove that the agency has no authority over his property.

At least due process ad sanity is returned. Now, it’s time to eliminate the EPA not just “rein them in”.

DevilsPrinciple on March 22, 2012 at 7:38 PM

In the end, Sackett represents a defense of the judiciary’s central role in our democracy from encroachment by Congress and the Executive Branch.

As Justice Scalia noted, the Executive Branch’s power to regulate does not trump the judiciary’s right to review: “The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.”

While the Court stopped short of constitutionalizing its decision in Sackett, it’s hard not to read between the lines that the judiciary will not sit quietly by while administrative agencies attempt to block judicial review of their coercive tactics against regulated parties.

DevilsPrinciple on March 22, 2012 at 7:51 PM

Let’s thank the Pacific Legal Foundation.

AshleyTKing on March 22, 2012 at 8:46 PM

I wonder if this means we can get the water turned back on in the San Joaquin Valley.

Axion on March 22, 2012 at 9:46 PM

Does anyone remember when RonMe spoke out against the EPA?

Me neither.

DannoJyd on March 22, 2012 at 11:29 PM

Wolf Howling on March 22, 2012 at 9:59 AM

ockmom on March 22, 2012 at 10:29 AM

Excellent comments. Reminds me of the discourse in Ed’s old Captain’s Quarters blog.

Nitpick for Ed:

Besides, Scalia wrote for the unanimous majority. . .

If it’s unanimous, there ain’t no minority. If no minority, is there a majority?

Excellent piece, on a vital topic.

MrLynn on March 23, 2012 at 12:06 AM

there ain’t no minority.

MrLynn on March 23, 2012 at 12:06 AM

Racist. :)

Axe on March 23, 2012 at 6:14 AM

* … need to revise my remark, to show the correct indignation and disgust:

Racist. >:(

Axe on March 23, 2012 at 6:26 AM

What if Obama just ignores the ruling?

JellyToast on March 23, 2012 at 7:54 AM

What is it with all these unanimous conservative rulings out of SCOTUS these days? Those darn Koch Brothers have bought the Court too?

JoseQuinones on March 23, 2012 at 12:38 PM

On a whim after a conversation with my daughter, I started reading Atlas Shrugged again. It is no overstatement to tell you that it is terrifying. Not only for the story, but for the daily manifestations of the same lunacy I see in stories like this and practically any time a “White House spokesperson” or Nancy Damn-the-Constitution Pelosi opens their mouth.

It’s keep me up at night worse than a horror story.

Or, maybe it is a horror story.

It sure scares the hell out of me.

IndieDogg on March 23, 2012 at 4:00 PM

But far better than that would be to get Congress to rein in these agencies

Far better would be to dismantle entirely the EPA. And OSHA. And the Dept. of Education. And … .

davidk on March 23, 2012 at 9:08 PM

What does this say about the people who created this system that they thought it was desirable to have essentially unchallengeable power? It’s truly frightening to think about. Every bureaucrat can be a petty dictator. We are all literally dependent on their sense fair play, but they aren’t paid to play fair.

flataffect on March 24, 2012 at 10:10 AM