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Court case on wetlands seen as having broader implications


This news story was published on January 7, 2012.
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By Michael Doyle, McClatchy Newspapers –

WASHINGTON — An Idaho couple’s dream home will be the center of a legal storm Monday at the Supreme Court.

For homebuilders, farmers and major corporations, the case called Sackett v. Environmental Protection Agency resonates well beyond one person’s ambitions or even the wetlands protections specifically at issue. Business groups reckon the case can help roll back federal regulations along a broader front.

“The Clean Water Act has, in short, become a tool for regulators to micromanage even the most routine decisions of farmers and ranchers,” attorney Mark Stancil wrote in a brief filed for the American Farm Bureau Federation.

Tellingly, 13 of the 14 friend-of-the-court briefs filed in the case side with Michael and Chantell Sackett. In a statement on the case, the Natural Resources Defense Council characterized the Sacketts’ legal allies as “industry giants.”

In sum, the Sacketts and their business allies want more leeway to challenge EPA orders. Specifically, they want to be able to sue the agency even before it goes to court to enforce an order.

The Sacketts ran afoul of the EPA when they sought to build a home on 0.6 acre in Priest Lake, Idaho. The home site was several blocks from the lake, and the couple said they didn’t realize they needed a permit the Clean Water Act requires for filling in wetlands with dirt and gravel.

The EPA subsequently ordered the Sacketts to “remove all unauthorized fill material” and to replant trees and bushes. Regulators further warned the Sacketts that they faced potential fines of up to $37,500 a day if they didn’t comply fully with the order.

The Sacketts complied but also sued, challenging the EPA’s authority. Judges so far have sided with the environmental agency.

A Boise-based trial judge whom President George H.W. Bush appointed and the 9th U.S. Circuit Court of Appeals both concluded that a lawsuit is premature until regulators begin enforcement, such as by imposing the fine. Simply warning that a fine is possible, so far, isn’t enough to allow a Clean Water Act challenge into court.

“Courts have widely recognized that, when agencies issue such communications, a recipient who disagrees with the government’s legal or factual assessments generally has no right to immediate judicial resolution of the disagreement,” Solicitor General Donald B. Verrilli Jr. noted in the Obama administration’s legal brief.

The Natural Resources Defense Council added in its statement that the Sacketts “chose to cut corners, and when they got caught, they blamed the EPA.”

All five appellate circuits that have considered similar cases likewise have rejected pre-enforcement lawsuits such as the one the Sacketts filed. This unanimity among appellate circuits made the Supreme Court’s decision to hear the case somewhat surprising, prompting speculation that the high court’s conservative majority is determined to go in a different direction.

“I think it’s fair to say that the Supreme Court doesn’t take cases simply to pat the lower courts on the back,” said Damien Schiff, a senior staff lawyer with the Pacific Legal Foundation, which is representing the Sacketts pro bono.

But even if the Sacketts appear favored to win, the case’s long-term significance comes in how the justices craft their decision.

Some groups, such as the American Petroleum Institute, stress simply that federal law permits a pre-enforcement challenge. Others, such as General Electric Co., reach further to say that a pre-enforcement challenge is a constitutionally protected due-process right.

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