Today we received excellent news from the U.S. Supreme Court in a case that has been making headlines nationwide, Sackett v. EPA. In a unanimous decision issued this morning, the Court agreed with NAHB that a property owner who receives a Compliance Order from the EPA or Army Corps of Engineers can challenge the Compliance Order in federal court. Before today, property owners had no judicial recourse when faced with such orders. NAHB filed both an amicus brief in support of certiorari and an amicus brief on the merits.
Michael and Chantell Sackett own an undeveloped half-acre lot in a residential area near Priest Lake, Idaho. According to the U.S. Environmental Protection Agency (EPA), the Sacketts placed fill material into a jurisdictional wetland while grading the lot on which they planned to build a home. EPA issued a compliance order requiring the Sacketts to remove the fill material and restore the wetland. After EPA denied their request for an administrative hearing to challenge the order, the Sacketts filed an action in district court seeking injunctive and declaratory relief. Both the district court and the Court of Appeals for the Ninth Circuit held that the Clean Water Act (CWA) precludes pre-enforcement judicial review of administrative compliance orders.
The Sacketts filed a petition to the U.S. Supreme Court in February 2011. Because the highly significant issues in the case impact our members nationwide, NAHB became involved. NAHB Litigation staff drafted and filed amicus curiae briefs at all stages of the U.S. Supreme Court review. Specifically, we urged the High Court to rule that under the Administrative Procedure Act (APA) the Sacketts had a right to judicial review. Furthermore, we argued that nothing in the Clean Water Act precluded such review.
Today, on a 9-0 opinion, the Supreme Court agreed with NAHB's position. Specifically, the Court provided that "there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without judicial review . . .." In addition, Justice Alito wrote a concurring opinion in which he urged Congress to "provide a reasonably clear rule regarding the reach of the Clean Water Act," which echoes NAHB's long-standing position on Clean Water Act reform..
III. Impact on the Home Building Industry
This case is important to the home building industry, because (like the Sacketts) home builders are often subject to administrative compliance orders with no means to challenge the order unless the government decides to file an enforcement action or they apply for and are denied a CWA Section 404 permit. This is not longer the case. Builders who receive CWA Compliance Orders can now challenge those orders in federal court.
In addition, many builders are faced with no place to turn when the EPA or Corps determines that a wetland or waterbody on their property falls under the jurisdiction of the agency. According to Justices Ginsburg and Alito, those property owners can now turn to the courts for relief.