Unanimous Supreme Court Rules in Favor of Property Owners in Sackett v. EPA

The Supreme Court today issued a unanimous decision in favor of the property owners in the important case of Sackett v. EPA [HT: GMU law student Matthew Roberts]. The opinions in the case (an opinion for the court and two concurring opinions by Justices Ginsburg and Alito) are available here. Justice Alito’s concurring opinion includes a particularly clear description of what was at stake:

The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

The Court bases its decision on statutory grounds, ruling that the property owners are entitled to judicial review of their case under the Administrative Procedure Act. It therefore did not reach the issue of whether such review is also required by the Due Process Clause of the Fifth Amendment, which states that the government may not deprive individuals of life, liberty, or property without due process of law. The scope of the decision is therefore limited. And, as Justice Alito goes on to explain, “the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.” He urges Congress to clarify the scope of the CWA so that property owners will at least have a clearer indication of the scope of EPA authority over their land. Despite these limitations, the decision is a significant victory for property rights, and a rare case of unanimity on an important property rights issue.

I leave it to others to debate whether it is appropriate for a Supreme Court justice to urge Congress to clarify the law in one of his opinions. But it’s worth noting that this is not the first time such a thing has happened. Justice Ruth Bader Ginsburg famously urged Congress to reverse the Court’s interpretation of Title VII of the Civil Rights Act in her dissent in the Lily Ledbetter case.

UPDATE: As co-blogger Orin Kerr pointed out in this 2007 post, Justice Ginsburg later stated that one purpose of her dissent in Ledbetter was “”to attract immediate public attention and to propel legislative change.”