The Supreme Court recently heard oral arguments in Sackett v. EPA. The case puts one in mind of Kelo v. New London, a controversial takings case decided in 2009. Like Kelo, Sackett v. EPA involves the claim of a private landowner against government—In Kelo, the government was the city of New London; in Sackett, the government is represented by the EPA. Although Kelo involved the takings clause and Sackett raises a due process issue, the two cases are linked by the question of private landowners’ control of their property.
The facts of the case are that Mike and Chantell Sackett bought a lot near Priest Lake, ID and were planning to build a home on the property. They had started to prepare the lot for construction when the EPA sent notice to them that their property is in a wetlands; since the couple failed to obtain a permit to allow them to do the dredging work as required by EPA regulations, they would have to restore the site to its original condition or be subject to $37,500 in fines for noncompliance. Under EPA regulations, if the Sacketts ignored the order the EPA could go to court to have the order enforced. The Sacketts argued that their property is not part of wetlands that is subject to EPA jurisdiction. But they restored their site to its original condition to avoid the possible fines. They also filed a lawsuit against the EPA, arguing that the regulations fail to provide those accused of violating EPA compliance orders with any chance to defend their actions at a hearing, a violation of due process.
The EPA has become the target of hostility over time. One reflection of this hostility was seen in the now infamous Republican presidential candidate debates when Rick Perry failed to remember the third federal agency he would abolish. Mitt Romney prompted the puzzled Perry with “EPA?” And certainly the EPA would be on the list of agencies that would be abolished in a Ron Paul Administration. Those who argue for the abolition of the agency argue that it is a prime example of big government run amok and the Sacketts’ situation seems to provide the perfect evidence for this claim. Indeed, the EPA’s action has been criticized for its action by some commentators.
The Sacketts’ lawsuit has met with dismissal at every level of challenge. The federal District Court argued that the law was not intended to allow challenges to EPA efforts to prevent environmental damage before the fact. The action by the EPA, the court contended, was meant to provide a warning to those who might inflict harm to the environment. The Sacketts could also have secured a permit as required by the law, although the Sacketts argued that this would require more money than they can afford. The EPA responded that the Sacketts’ property is in fact a wetlands; that their own expert confirmed this; and that the agency will work with landowners to help them secure proper permits at affordable cost, something that the Sacketts refused to do.
There are many supporters for the Sacketts, including big businesses that have met with EPA opposition when attempting to develop their properties. Lyle Denniston notes that an almost identical case involving General Electric was denied review by the Court just before the Court accepted the Sackett’s case. As he notes: “If the Sacketts do wind up prevailing against EPA, the result no doubt would not be confined to situations like theirs. Indeed, most of the amici lined up on the side of the Sacketts in the case are business interests, ranging from the U.S. Chamber of Commerce, to the National Association of Manufacturers, to the American Petroleum Institute, to the National Association of Home Builders, and more, as well as conservative legal advocacy groups.” He also points out that there are almost no amici filed on behalf of the agency. And things did not go well for the EPA at oral argument, as the tenor of the questioning strongly suggested that the Court’s sympathies rest with the Sacketts.
The Court’s acceptance of the case for argument on the merits is surprising, given the lack of conflict among the lower courts on the decision. Some commentators have speculated that the Court took the case because they wanted to make a point. The case is an interesting example of how case facts can influence the perception of the issues in the case. The focus on the Sacketts’ concern over the use of their property can obscure the larger impact of the case and influence public perception. If the case had involved a similar situation with a large corporation, would public opinion be as sympathetic? The case is also a great example of the factors that might influence the Court’s decision to grant cert in a particular case.
 Lyle Denniston, Argument preview: Jousting with the EPA, SCOTUSblog (Jan. 4, 2012, 7:07 PM), http://www.scotusblog.com/2012/01/argument-preview-jousting-with-the-epa/
 Lyle Denniston, A weak defense of EPA (UPDATED), SCOTUSblog (Jan. 9, 2012, 12:19 PM), http://www.scotusblog.com/2012/01/a-weak-defense-of-epa/