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InsiderOnline Blog: March 2012

A Property Rights Win at the Supreme Court

Property owners now have at least some legal recourse when the Environmental Protection Agency comes calling with a compliance order, thanks to a big win at the Supreme Court by the Pacific Legal Foundation. In 2005, the EPA told Mike and Chantrell Sackett they couldn’t build on their two-thirds of an acre in Priest Lake, Idaho. The EPA claimed the couple’s property was wetlands and therefore subject to EPA control under the Clean Water Act. (At right is a picture of the Sackett’s lot.) The EPA then claimed, and lower courts agreed, that the Sackett’s could not legally challenge the designation of the property as wetlands until the EPA sues them for noncompliance. In the meantime, the owners would be subject to fines up to $75,000 per day.

On Wednesday, the Supreme Court said:

In a nation that values due process, not to mention private property, such treatment is unthinkable.

The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But 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.

Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.

The ruling was unanimous.

Posted on 03/21/12 05:47 PM by Alex Adrianson

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