Sackett v. EPA : Supreme Court Will Decide Property Rights Case

By Peter Bella, Washington Times

Imagine this.  You buy a vacant lot in a residential subdivision across the road from a small lake.  The lot is zoned for residential building.  It is surrounded by other homes and homes being built.  You submit your plans and blueprints and receive a building permit.

You start grading the property to build a home.

The Environmental Protection Agency and Army Corps. of Engineers show up and accuse you of building on a “wetland”.  The EPA issues what is known as a “compliance order”.  You must stop all building.  You must restore the land to its natural state.  You must replace and plant trees.  You must place a fence around the land and maintain the property in a pristine condition.

You have no right to a pre-enforcement challenge of the order.  You must comply with the order or be sued by the EPA and face fines between 35-75 thousand dollars per day.  

“Unlike other regulations and enforcement orders, the EPA under clean air and water laws can issue an order without giving the recipient a chance to challenge it in court before the agency initiates a lawsuit for noncompliance.” (IBT)

You are punished by being forced to spend money to correct an unproven accusation of a violation of the law- no probable cause or preponderance of the evidence.  No way for you to prove or argue your case until the EPA decides to sue you.   

This is at the heart of Sackett v. EPA.  The Supreme Court of the United States heard arguments on this case today.  A decision is expected by June.  The case started in 2007 when the “compliance order” was issued.  The case is based on very complicated, some say senseless, enforcement policies and procedures governing the Clean Water Act.