The government had taken the position that such orders were not open to judicial review until the agency took final action.
But the court disagreed.
“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 review — even judicial review of the question [of] whether the regulated party is within the EPA’s jurisdiction,” Justice Antonin Scalia wrote.
The decision, although narrow, was seen as a victory for developers, corporations, utilities, libertarians and others who have said the EPA’s actions were an abuse of power.
“The justices have made it clear that EPA bureaucrats are answerable to the law and the courts, just like the rest of us,” said Damien M. Schiff of the Pacific Legal Foundation, which represented the Sacketts. “EPA can’t try to micromanage people and their property — it can’t order property owners to dance like marionettes — while denying them any meaningful right to appeal to the courts.”
Environmentalists took the view that the ruling was narrow and did not contest the EPA’s ability to issue compliance orders. “The court did not adopt any of the radical ideas advanced by industry and its allies that could have severely hampered public health and environmental protections,” said Jon Devine, a senior attorney for the Natural Resources Defense Council.
The Sacketts want to build a home on a 0.63-acre lot that they bought for $23,000 near pristine Priest Lake in the Idaho panhandle. But after three days in which the couple brought in fill dirt and prepared for construction in 2007, officials from the EPA and the U.S. Army Corps of Engineers ordered the activity stopped and said they suspected that the land contained wetlands.
Months later, the agency sent the Sacketts a compliance order that said the lot must be restored as wetlands before the couple could apply for a building permit. The government acknowledged that fines for failure to comply with the order could be as much as $75,000 a day.
The question for the justices was whether the couple had a right at that point to appear before a judge and contest the agency’s contention that their land contained wetlands subject to the Clean Water Act.
Scalia joked in summarizing the decision from the bench that the Sacketts were surprised by the EPA’s decision that their land contained “waters of the United States,” since they had “never seen a ship or other vessel cross their yard.”