The EPA faced tough questioning at SCOTUS. Justice Alito to counsel for the government/EPA: "If you related the facts of this case . . . to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?" The case involved an alleged wetlands protection violation and whether the owners had a right to a judicial hearing. Chief Justice Roberts to counsel for the government: "What would you do, Mr. Stewart, if you received this compliance order? You don't think your property has wetlands on it and you get this compliance order from the EPA. What would you do?" Counsel responded meekly about obeying the law. See pp. 36-37 of the transcript of the oral argument. See pp. 42-44 for the government's reasoning for not granting hearings to those being prosecuted by the EPA. This is not mere Tocquevillean soft despotism! Even the liberal justices expressed sympathy for the landowners.
The Pacific Legal Foundation argued for the plaintiff landowners, the Sacketts. It will put up the audio later in the week. Someone who attended the oral argument told me that Mrs.Sackett had to restrain her husband from doing fist pumps when they heard the hostile questioning from the justices.
UPDATE: I forgot to mention that the President paid a surprise visit to the EPA yesterday, bucking up the staff and cheering them on. "When we clean up our nation's waterways, we generate more tourists for our local communities." In the Sacketts' backyard? Of course Obama allowed, in one of his typical throwaway lines, "we have an obligation every single day to think about how can we do our business a little bit better."
"Counsel responded meekly about obeying the law."
The correct answer might be: You do whatever you want.
The EPA is not authorized to bring enforcement actions for mere violations of compliance orders. In order to enforce a compliance order the EPA has to bring an action alleging violation of the clean water act.
A compliance order is more or less an advisory opinion by the EPA, that says, look we think you might be in violation of the law. If you make us do all the homework to prove it (spend big tax payer money) we are going to hit you over the head with fines.
But the EPA is not allowed to bring an enforcement action for violation of these advisory opinions/compliance orders.
If you are 100% sure that your property has no wetlands, you can more or less tell the EPA to pound salt.
Of course no bank wants to loan money for construction to a site that may be in violation of the CWA, and this risk is higher in a case such as this one where the geography has the house on a lake(Priest), right accross from a National Forest(Colville). In fact the location looks like a more narrow backwards Michigan surrounded by a National Forest and a wildlife refuge (Kootenai).
I would guess that folks who live here are environmental aficionado's, it is even possible that neighboors who don't want neighboors/sprawl would claim that they are surrounded by wetlands. (a way to manipulate CWA for private gain).
The EPA needs some evidence to issue an advisory opinion/compliance order, but I would also argue that claim (3) fails. Claim 3 was that: "issued on the basis of an "any information available" standard that is unconstitutionally vague." fails because
The unconstitutionally vague standard only applies to law, and law is not of the character of an advisory opinion(see Marbury v. Madison). A reason in my opinion that the counsel should have made clear that this was not something with the force of law.
Claim (2) " issued without a hearing in violation of the Sacketts' procedural due process rights;" This fails because the compliance order is just the non-legal free advice of the EPA. If you restore the land to its natural condition, and apply for a permit, and if you are denied the permit, because it is a wetland, then we won't fine you. What you have to do to show a good faith mistake if in fact you are proven guilty.
These compliance orders are a cross between an advisory opinion and the advice given by the prosecutor to a suspect. "We know you did it! If you come clean now, and don't make us prove the case, we will be lenient with you."
But you never have to talk to the prosecutor, or listen to his advice, so the real answer is you do whatever you want.
The Clean Water Act (CWA) requires that penalties for noncompliance with a compliance order be assessed only after the U.S. Environmental Protection Agency proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order.
These compliance orders are just "puffery", an attempt by the EPA to get you to do the right thing, as it suspects the right thing is. Like the attempts of prosecutors to get witnesses to talk and deal in good faith, they are probably an integral part of the mechanical process that allows the EPA to not have to prove EVERY, SINGLE case.
But it hasn't yet proved squat. So the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in federal court.
Only the actual enforcement action "compels you" or is really state action, so there can be no judicial review under the CWA, until the EPA has actually acted upon its bluff. Or to quote the lower court:
"Moreover, no sanctions can be imposed, or injunctions issued, for noncompliance with a compliance order until the EPA brings a civil enforcement action in district court. See 33 U.S.C. § 1319(d); Hoffman Group, 902 F.2d at 569. Given that an enforcement action gives an opportunity for judicial consideration of the compliance order, we infer that Congress intended that all challenges to the compliance order be brought in one proceeding. See id.; cf. Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 14, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981) ("In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.").
If it takes Supreme Court rulings to basically get the Golden Rule institited as one of the principles relating behavior between citizen and the government when the citizen has not deliberately violated a rule with mailice, we have to understand it is as the sign of rot, that it actually is.
It is not a sign that Leviathan has arrived, but that he has fully moved in.
Why do citizens have to go to such lengths to protect property they purchase in good faith? If a place is a wetlands, why does the EPA allow it to be available for development and sale in the first place? If it is a known and natural wetland that the federal government wishes to protect, why can't it be bought through eminent domain when the previous owner was first selling it for development?
We should be grateful to the Sacketts for fighting this to the SC. Such fights are expensive in every way.
I just read in my paper about the President's support for the EPA and came back to add it. This man, with one word, could tell the EPA to back down. The fact that they are instead arguing in court must indicate something--that laws that Democrats support will enforced thoroughly and efficiently, no matter how draconian or arbitrary.
It is my profound belief that no solitary individual has a ghost of a chance if he is going against some of the sacred beliefs of the Democratic party. Even if he triumphs, it will only be after an intense struggle.
These advisory opinion/compliance orders may have no legal weight in some minds, but as soon as they are made public, it is the beginning of an enforcement action.
I could see the EPA's position if these advisory opinion/compliance orders were merely sent to the landowner and remained a private warning of sorts.
More interesting than this irrational case, is the one making its way from the Ninth Circuit Court of Clowns in the StupidState to the Supreme Court.
On December 14, 2010 the trial court issued a favorable decision on the basis that the smelt biological opinion from the ESA was invalid.
On March 25, 2011 the Ninth District Court of Clowns (95% of their cases get overturned by the Supremes) rejected the challenge that the delta smelt restrictions have resulted in water cutbacks for farmers in the San Joaquin Valley and Southern StuipdState.
This case involved a misguided, liberalism is a mental illness attempt to help a fish - the delta smelt - that is on the ESA list. The Federal government has severely cut the pumping into the water system that serves millions of people in Central and Southern StupidState.
Farms and businesses are starved of water which has been allowed to flow into the Pacific Ocean and is off-limits to human use or consumption. 85,000 acres of farmland is out of production in the StupidState. Grass hay which is used to feed livestock in the StupidState is now at $19 per bale and being shipped into the StupidState from Oregon, Colorado and Washington. Of course the drought we are experiencing here in Northern California is not helping neither. To all of you who depend on food from the StupidState - well your food bill is going sky high by summer. Thanks to liberalism is mental illness.
Jobs, businesses, farms and ranches are affected - including the liberal's precisous voting block - illegal aliens. But liberals don't care about illegal aliens - only when they need them to vote.
By starving what once was "American's Breadbasket" we are now more dependent on foreign sources for the food. Gee - doesn't that sound like liberal is a mental illness when it comes to oil production in America.
The Pacific Legal Foundation has been working to get the water turned back on and getting people back to work, business hiring and operating and the growing of one of life's most basic needs - FOOD.
This reminds me of the stupidcity (SF). They have enacted tons of laws protecting dogs and cats from death and mistreatment. But they have tons of laws letting people slaughtered innocent unborn children.
It will be quite interesting to hear the questions from the Supremes like Alito, Roberts and Scaila to the ESA's counsel.
They are very much intended to be a public warning. They are intended to prevent banks from loaning for construction, or contractors continuing development.
Lets assume the Sacketts have very good credit. A bank is happy to lend to them. But you toss in a compliance order, and all of a sudden the risk equations change. Will the Sacketts have money to pay for the house if it has to be torn down, and the land restored? (who is really going to end up eating those fines, we all know that the gov. stands first in line).
So the EPA has to give notice to anyone with a property interest in the development (bank, contractors+ the Sacketts).
Formally (and in fact if you are as rich as Romney) you can do what you want. But in fact if you have to use finance, the EPA compliance order is a death sentence.
If you are a loan originator, do you want to answer to your boss about why when you had actual notice (the EPA compliance order) you went through with financing, and the EPA ended up prevailing? You will lose your job (in all likelyhood you probably don't have that agency discretion as a matter of policy).
If the bank cuts off the financing, and you are the developer are you going to keep building on the promise of the Sacketts that they are good for it?
Also no real lawyer is going to tell you that you should disregard the EPA. (it won't make sense for him in terms of a risk proposition).
These compliance orders are probably the most effective tool the EPA has.
On the other hand I would be very suprised if the SC rules in favor of the Sacketts.
As you lay it out, compliance orders are the beginning of an enforcement action and therefore should be subject to judicial review.
I actually agree with the Sacketts, it just seems that this is not a "final" agency action. The beginning of an enforcement action doesn't subject this to judicial review because the APA does not authorize judicial review at this juncture. In fact I am not sure what administrative action would constitute "final" agency action, and thus be reviewable.
Folks like the Sacketts are put in a position where they must completly ignore the EPA (at potentialy ruinous peril) in order to force the EPA to bring a legal action against them in federal court, so as to qualify for judicial review.
Notice that the EPA bluff on fines @ $36,500 if totalled since early 2008 would be over $50 million. There is no way a federal judge would impose such a fine.
This is a formalistic situation, where if you want to qualify for judicial review, you are expected to completly ignore the EPA, and risk bankrupting loss (especially since the federal judge could argue you acted in bad faith).
So it is a very formalistic "you do what you want", reminiscent of the freedom one has in the Army, to do as they say "Whatever your collar(rank, authority and thus money) can handle". It is sort of like the freedom to contract, "theoretically" you can get what you want, and every provision is negotiable. In practice however very little is negotiable. You have a contract that is almost as complex as EPA regulations, and you take it or leave it, and you aren't sure what your rights are (your bundle of sticks and duties).
Theoretically and formalistically the Sacketts remain free, until they are actually brought into court by the EPA, but of course like the worker who wants a job, as soon as the Sacketts want to take a course of action such as building a house, such a formalistic understanding of the freedom of the Sacketts, lacks truth since building a house entails bank loans and contractors. So the EPA is seriously infringeing the positive right of the Sacketts to contract, while falling back on a highly formalistic sort of negative rights view of contract and state action.
The EPA can honestly say: We are not the bank, we are not the contractor, we aren't even the federal judge who even if we prevail will possibly waive the 50 million in fines. It is not our fault that such prospective fines(and the fact that the gov. collects first) have a chilling effect upon your freedom to contract with the bank or the home builder. Of course if such advisory opinions didn't have a chilling effect, the EPA would quit using such threats.
In effect in cases such as the Sacketts you have to have real money before you can even call the bluff, and get the EPA to enforce against you (and then get judicial review) Most of the time the EPA doesn't enforce in a timely manner because the longer it waits the higher the threatened fines get and the less likely anyone is to get financing(which means a stop to prospective environmental damage).
In terms of conceptualizing I think of the Carrol Towing test. likelyhood that you fail to prevail against the EPA vs. costs/risks if you do not. At some point even a 1% chance of failure is paralyzing when you are talking about a $50,000,000 fine. Which is why Banks always cut off financing. Even 1% is $500,000 (at this point).
It isn't just the banks and the contractors who bulk, most lawyers also bulk because even if you do the "right thing" and try to use the CWA permiting process that does provide for some due process, what it doesn't provide for are legal fees(costs are not recoverable under Thunder Basin) if you do win. So right or wrong you are going to have to pay a lawyer, and the experts aren't cheap. Trying to beat the EPA on a budget even with the upper hand is costly for the client.
I am actually on the side of the Sacketts, I was just argueing that in theory if I was Mr. Stewart I would be emphasizing the formal/negative aspects with a narrow state action view, i.e. this is just an advisory opinion, or an EPA wish list, it certainly isn't "final" agency action, just a paper in the mail informing the public of the EPA's position on a piece of property with respect to the CWA.
If I am PLF, then I am getting into how all this neat architectural theorizing breaks down in practice. I am digging into the mechanics/economics and exposing the formalistic emptyness of Mr. Sacketts true alternatives under such a narrow reading of state action/final agency action.