When Property Rights and Environmental Laws Collide: NPR

The U.S. Supreme Court is hearing arguments Monday in a case near and dear to enemies of the EPA.

It appears to be a David and Goliath case that pits a middle-class American couple trying to build their dream home against the Environmental Protection Agency. But the couple, Michael and Chantell Sackett, are backed by a veritable American who’s who in mining, oil, utilities, manufacturing and real estate development, as well as groups opposed to government regulation.

Chantell and Mike Sackett claim the EPA violated their right to due process when it said they were building a house on a wetland. The Supreme Court will hear the case on Monday.

Jessica Robinson/Northwest News Network

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Jessica Robinson/Northwest News Network

Chantell and Mike Sackett claim the EPA violated their right to due process when it said they were building a house on a wetland. The Supreme Court will hear the case on Monday.

Jessica Robinson/Northwest News Network

On one side of the kaleidoscope, this is a case of bureaucratic power gone mad. On the other hand, this is a trumped up affair aimed at gutting the regulatory powers of the EPA.

A dispute over facts

The story begins in 2005 when Chantell and Mike Sackett purchased two-thirds of an acre of land for $23,000, located approximately 500 feet from scenic Priest Lake, Idaho. The lake is a 30 km stretch of clear water fed by mountain streams and bordered by state and national parks, with a shoreline dotted with homes, resorts and marinas.

The Sacketts, who own a small excavation business, broke ground on their three-bedroom home project in 2007. Three days after they began cleaning the property and adding backfill, the EPA acted on a complaint.

“Three officers showed up and told the worker to stop working and that they wanted to see his swamp fill permit,” said Chantell Sackett.

She says the couple had done their due diligence to get building permits and since other homes are nearby, the couple had no idea they needed a permit from the EPA .

This is about where any agreement on the facts in this case ends.

The Sacketts maintain that their property is not a wetland and therefore no permit is required under the Clean Water Act.

“The EPA didn’t even come to the property and do any testing,” says Chantell Sackett. “We have… We had a hydrologist, a soil scientist [specialist] and a wetland expert came, and they did their tests, and they know it’s not wetland. But that doesn’t matter to the EPA. They just want to be able to say, “No, we’re now going to regulate this property, and you can’t do anything about it, and if you do, we’re going to throw you in jail.” “

The EPA does not comment on the case. But environmental groups, after obtaining records under the Freedom of Information Act, filed a brief in the case with a different version of the facts.

“What they got from their own expert was, ‘Yeah, actually, you have wetlands on your property,'” says Larry Levine, an attorney at the Natural Resources Defense Council.The expert, Levine says, advised the Sacketts “to do nothing further until things are settled with the government”.

The Sacketts say obtaining a permit would have cost hundreds of thousands of dollars, but Levine says there are several ways for individuals like the Sacketts, who have a small project, to obtain it easily and inexpensively. a licence.

Seven months after the EPA informed the Sacketts that they were illegally filling in wetlands, the agency sent the couple a document known as an Administrative Compliance Order. The EPA ordered the couple to remove the embankment and restore the wetlands, and noted they could face fines in federal court. Six months later, the Sacketts sued to challenge the compliance order. Two federal courts dismissed the case, saying the order itself did not seek enforcement or penalties and was not a final judgment against the couple.

And that’s the heart of this case. Every appellate court across the country that has ruled on the issue has come to the same conclusion. They all said that at this stage of a permit dispute, there is nothing to consider since the government has not sought enforcement of its order, let alone proven a violation of the Clean Water Act. before the courts. No fines were imposed either.

Indeed, the government says it views a compliance order as a warning, noting that it invited the Sacketts to come discuss the dispute and seek a resolution.

Property rights and anti-pollution laws

This characterization is hotly contested by Damien Schiff of the conservative Pacific Legal Foundation, which represents the Sacketts for free.

“This compliance order is not just a ‘please do not fill in the wetlands’ letter,” Schiff said. “It’s an order backed by the power of the federal government that says, ‘If you don’t immediately comply with this, you will be subject to significant civil liability. “

Schiff notes that potential fines here could be as high as $37,000 per day.

“When the government says you can’t build on your property, it’s clearly a violation of their property rights, their freedoms, and it demands that they have their day in court before the government can. force it,” Schiff says.

The government agrees that citizens have a right to a hearing before they can be banned from building on their property – the question is when. At this point, the EPA argues that there is nothing to hear since no enforcement action has been taken.

Environmental groups fear a Sackett victory could allow major polluters to engage the EPA in litigation, preventing meaningful enforcement of pollution laws. They also point to similar provisions in other health and safety laws. Congress, they say, wanted compliance orders and the threat of heavy fines to force violators to change their ways, and they say the EPA and the courts have treated small violators much more benignly than large ones. polluters who are the main targets of the law.

That’s no consolation for Mike Sackett.

“It really makes you wonder how the system works,” he says. “You pay taxes to be punished by the same government you pay your taxes to, and when they punish people, they do so without any accountability.”

A decision in the case is expected later this year.