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David vs. Goliath -- or Goliath vs. David? Supreme Court to Hear Industry-Backed Challenge to Clean Water Enforcement

Larry Levine

Posted January 6, 2012

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The Supreme Court will hear a case on Monday in which a couple from Idaho claims the Environmental Protection Agency improperly ordered them to restore wetlands that EPA alleged they illegally destroyed near scenic Priest Lake.

The couple, Mike and Chantell Sackett, say they never believed there were any wetlands on their property and had no reason to suspect they might need a Clean Water Act wetlands permit before building on the land.  But a timeline of events prepared by Ms. Sackett herself clearly shows otherwise.  More on that below.  

The Sacketts portray their lawsuit as a motherhood-and-apple-pie case of an ordinary family who just want to build their dream house. But how many Americans do you know whose home-building plans attract support from the American Petroleum Institute, the National Mining Association, National Association of Manufactures, and dozens of other corporate interests?

These industry groups have filed friend-of-the-court briefs on behalf of the Sacketts because they see an opportunity to hamstring the EPA’s ability to enforce the Clean Water Act -- and potentially a whole raft of bedrock environmental laws that protect Americans’ health and natural resources, including the Clean Air Act, Safe Drinking Water Act, and the Superfund hazardous waste law.

If the court rules in favor of the Sacketts and these industry giants, the agency will have a much harder time stopping environmental harm—things like dumping toxic chemicals into rivers, as well as burying wetlands and other sensitive areas.

The EPA’s job of protecting Americans’ health and environment will get harder, and polluters’ efforts to dodge the rules will get easier. That’s why NRDC filed a brief in the case—to defend the Clean Water Act and EPA's ability to protect America’s waterways.

The Act protects wetlands because they provide services we all rely upon. They help recharge groundwater supplies, reduce the impacts of flooding, filter pollutants from our water, and offer critical habitat for aquatic life.

At its core, the Sacketts’ case is a procedural one. The Sacketts claim the EPA swooped in, issued an order to stop building without a permit on what EPA deemed to be a wetland, and refused to give them a hearing to dispute the agency’s finding. But if the Sacketts had played by the rules, they would have had many opportunities to secure a permit to fill in the wetland—or, indeed, to pursue a lawsuit challenging the government’s view that their property includes wetlands subject to Clean Water Act permitting requirements, which is precisely what the Sacketts are now asking the Supreme Court to allow them to do.  

Instead, they chose to cut corners, and when they got caught, they blamed the EPA.

The couple says they had no reason to believe their property included a wetland and, therefore, never sought a wetland permit. Yet, in documents secured through the Freedom of Information Act (and which NRDC describes in our legal brief), Chantell Sackett herself described her property as including wetlands and being surrounded by wetlands on three sides.

That’s not surprising given the geology of the area. The site is a stone’s throw from western shore of Priest Lake and a creek that drains into the lake, and is in the immediate vicinity of state and federal forest and park lands and other known and sizeable wetland areas. Mike Sackett runs an excavation business and his experience in the construction trade might have prompted him to consider the presence of wetlands on his own property, before starting construction.

A few days after the Sacketts began putting down fill material to make the ground solid enough to build on, EPA showed up on site and asked if the Sacketts had a permit to fill in the wetland. The Sacketts said they didn’t have one.  The next day, they hired a consulting scientist to evaluate whether their property contained wetlands. According to Ms. Sackett’s timeline, the consultant confirmed there was a wetland on-site and urged the Sacketts not to proceed further until they had straightened things out with the U.S. Army Corps of Engineers, the agency that handles Clean Water Act permit applications for construction activities in wetlands.

Several weeks later, Mrs. Sackett went to the Corps’ regional office, where a staff person provided her with an application for an “after-the-fact” permit, which, if granted, would retroactively authorize the Sacketts’ filling of the wetlands on their property.  Notably, for small projects like the Sacketts’, the Corps provides a simplified permit application process, which typically leads to prompt approval of construction, subject to some basic conditions intended to minimize environmental harm.

But the Sacketts chose not to file the application.

Six months later, the EPA issued a compliance order—providing written notice that EPA believed the Sacketts were in violation of the Clean Water Act. It came with instructions for how to fix the damage and an invitation to discuss the situation with the EPA, if the Sacketts believed EPA’s position was misinformed.

Again, the Sacketts refused to take the next step. Instead, they sent a lawyer’s letter demanding a formal hearing.

And this is the crux of the matter. The Clean Water Act says the EPA can issue compliance orders without an immediate opportunity for a formal hearing, because these orders are designed to stop environmental harm as swiftly as possible. If the police see a car speeding down a busy street, their first task is to stop the driver from endangering others, not to offer a hearing before they turn on their sirens. And if the driver thinks he wasn’t speeding, he gets his day in traffic court to defend himself afterwards.

It’s the same principle here. The first priority is to halt the contamination of America’s waterways or the destruction of our wetlands. Otherwise, industries could haul the EPA into court every time the agency tried to stop them from polluting. And the environmental devastation would continue in the meantime.

Citizens and companies have many opportunities to appeal the government’s position in such cases. If the Sacketts had applied to the Corps for a permit and been refused, they could have challenged that in court. If they had received a Corps permit but didn’t like the conditions attached or felt, as a matter of principle, that they should not be subject to federal regulation, they could have challenged that as well. But instead, the Sacketts bypassed the rules, and the EPA had to step in. 

And even now, the Sacketts are fully entitled to defend themselves.  EPA must initiate further enforcement action if it wishes to impose penalties on the Sacketts for the alleged Clean Water Act violations.  All parties agree that, at that time, the Sacketts would get their hearing and their day in court, with a full opportunity to dispute any or all of EPA’s allegations.  As well they should, consistent with principles of fairness inherent in our legal system.

The bottom line is this:  The big industries supporting the Sacketts’ case want to make it harder for the EPA to take action to promptly correct ongoing environmental harms. They know if the court rules in their favor, they can sue the EPA every time the agency issues a compliance order that puts a polluter on notice of an alleged violation. The EPA will be bogged down in court, using limited resources to fight lawsuits instead of enforcing the Clean Water Act.  Or, more likely, EPA will cut down on the use of such orders to avoid getting bogged down in court.

The whole idea behind compliance orders—as the appeals court confirmed— is to enable “swift corrective action.” If we let polluters slow that process down or discourage EPA from ever using it, the lakes, rivers, and wetlands Americans hold in common will become vulnerable to more destructive practices and more prolonged damage.

It’s been said that this is a case of David vs. Goliath. And it is. But it’s not the Sacketts and their industry supporters who are the David battling the federal government Goliath, as their lawyers and spin-meisters would like to have you (and the Justices of the Supreme Court) think.  It’s EPA, fighting to protect Americans’ health and environment from polluters, that’s the real David here, and the Supreme Court shouldn’t take the slingshot out of David’s hand.

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TerryJan 6 2012 04:38 PM

Thanks for the great summary and for all of the hard work. Your friends here in North Idaho certainly appreciate it.

Kevin ParksJan 7 2012 10:36 PM

On the issue of knowledge about the wetland, it would be interesting to find out what they paid for the lot in comparison with other lots nearby that would not require the fill.

Tim AustinJan 9 2012 03:56 PM

This case shows that perhaps the EPA has outlived its usefulness. We made it almost two centuries in this country without an EPA, which denied these people EVEN A HEARING. Let's try a couple more centuries without an EPA.

William DeckerJan 12 2012 11:57 PM

Wow, what a poorly written article.

This is not about 'big industries'. This is not about whether or not the Sacketts built in a wetland (although the report in your FOIA PDF seems to indicate that they did not).

This is about the 5th amendment, period. I had to chuckle when I read your claim "And even now, the Sacketts are fully entitled to defend themselves" You mean after they pay their 40 million dollars in fines?

Larry LevineJan 13 2012 12:04 AM

What Would It Be Like if the We Abolished the EPA? As Dirty As It Used to Be:

And, as explained in the blog above, no one is denied a hearing. The Sacketts had chances and willfully passed them up, and they will have a chance again in the future before any penalties can be imposed.

Larry LevineJan 13 2012 12:10 AM

William -- To be clear, the FOIA documents include Ms. Sacketts' own timeline of events recounting that the expert she hired concluded that there were wetlands on her property. The documents also include a letter from that expert, regarding his investigation of a *different* property -- on which the Sacketts had disposed of soils removed from their own property -- and concluded that the other property did not include wetlands. (Even in that letter, the consultant referred to the soil that the Sacketts had removed from their property as "wetlands soils".)

And, as explained in the blog above -- and in much greater detail in our brief, which is also linked from the blog -- no one is denied a chance to defend themselves. The Sacketts had chances and willfully passed them up, and they will have a chance again before any penalties can be imposed. All parties agree that the courts have the final word, not EPA.

Cindy LamonJan 13 2012 02:50 AM

Informative and thorough article. Appreciate your work at NRDC.

William DeckerJan 13 2012 09:11 AM

Nice Straw man. Abolish the EPA? Who advocated that? The part that completely flies over your head is that this sort of behavior by the EPA, harassing small landowners over very questionable situations is exactly what WILL kill the EPA. The backlash is growing.

It is a shame, as there is a place in our country for a responsible and reasonable EPA - defending the clean water act AS IT WAS WRITTEN.

Joseph SmithJan 13 2012 04:45 PM

The Sacketts "timeline" which looks like it starts at page 15; doesn't include everything they Sacketts did prior to the EPA stepping in.
Before the Sacketts even started building they got the required local permits and even consulted the Army Corps of Engineers (who told them a federal permit was NOT needed). Your story is one sided. Sorry if life for the EPA might become difficult; in a free society the default should go to the people.

No person deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Larry LevineJan 15 2012 03:07 PM

Joseph, you are correct that the Sacketts obtained the appropriate local building permits. However, they have never claimed in their legal papers that they consulted the Corps of Engineers before starting construction, much less that the Corps told them they didn't need a federal Clean Water Act permit. But they did have the opportunity to consult the Corps, and to get a formal written determination from the Corps regarding whether they needed a permit. If they had done so, and the Corps had found that they didn't need a permit, such determinations are generally binding on both the Corps and EPA in any subsequent legal dispute. This is all explained in on pages 4-5 of our friend of the court brief (which is linked from the blog).

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