Justices query wetlands case

WASHINGTON – The Supreme Court appeared sympathetic Monday to an Idaho couple’s fight to build their dream home over the objections of the Environmental Protection Agency, in a case that could have far broader implications and limit the EPA’s ability to regulate developers, energy companies and others.

Justice Samuel Alito said homeowners could relate to the situation of Idahoans Michael and Chantell Sackett.

“Don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” Alito asked the lawyer who was arguing for the government during oral arguments in the case Monday.

Alito called the EPA’s conduct “outrageous.” Justice Antonin Scalia spoke of the agency’s “high-handedness.”

The broad issue is whether landowners hit by EPA compliance orders should be allowed to sue immediately to overturn those orders, rather than waiting for the EPA to go to court to force compliance.

The case could have far-reaching implications. Environmental groups say that a Sackett victory could allow big corporate polluters to tie up the EPA in court instead of dealing with the problem.

The Sackett case has become a conservative rallying cry, with radio hosts, lawmakers and business groups touting it as an example of an agency run amok. Idaho Republican Sen. Mike Crapo said, “This is what happens when an overzealous federal agency would rather force compliance than give any consideration to private property rights, individual rights, basic decency or common sense.”

The legal storm began after the Sacketts filled in dirt and rock on their property for a home they were building on about a half-acre near scenic Priest Lake in North Idaho.

Officials from the EPA appeared and asked the Sacketts whether they had a permit to fill in wetlands under the Clean Water Act. The EPA subsequently told the Sacketts to “remove all unauthorized fill material” and to plant trees and bushes, saying the couple faced potential fines of up to $37,500 a day if they didn’t fully comply with the directive.

The Sacketts dispute the assertion that the land, which is in a subdivision, is wetlands, and they challenged the EPA’s authority. The conservative Pacific Legal Foundation, which signed on to represent the Sacketts for free, argues that landowners should get to challenge EPA compliance orders in court because otherwise they’re just at the mercy of the threat of big fines.

General Electric, the American Petroleum Institute, the National Association of Home Builders and 10 states filed court briefs in support of the Sacketts, underscoring the potential broad implications of the case.

The EPA says directives such as the one the Sacketts received are essentially just warnings with the goal of negotiating a solution. The government says a court challenge shouldn’t be allowed until the EPA goes to a judge in an attempt to seek enforcement of the order.

“It is phrased as an order. But the only thing that EPA is authorized to do … is to order people to do what they were already legally required to do. That is, order them to comply with their legal obligations,” Justice Department attorney Malcolm Stewart argued Monday.

A Boise, Idaho-based trial judge, appointed by President George H.W. Bush, and the 9th U.S. Circuit Court of Appeals have sided with the EPA’s position in the case. So have the nation’s other four appellate circuits, in similar cases.