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.