Supreme Court critical of EPA wetland order against Idaho couple

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The Supreme Court gave a sympathetic hearing Monday to an Idaho couple who were threatened with fines of up to $75,000 a day from the Environmental Protection Agency for starting to build a home near a pristine mountain lake.

If an ordinary homeowner received such a threat from the government, they would say “this kind of thing can’t happen in the United States,” said Justice Samuel A. Alito.

All the justices who spoke during Monday’s argument sounded critical of the EPA. The property-rights case could give landowners and developers a new right to challenge the agency’s orders at early stage.

Mike and Chantell Sackett bought a residential lot across the road from Priest Lake in northern Idaho. But a few days after they laid gravel in 2007, three EPA officials gave them a compliance order saying their land included wetlands. If they failed to restore the land to its natural state, they were told, they faced fines of up to $37,500 a day for violating the Clean Water Act and another $37,500 a day for violating the EPA order.

The Sacketts asked for a court hearing to contest the order. They said their dry lot was not a wetlands. But the agency and two lower courts said no hearing was called for until the threatened fines were actually levied.

“What would you do if you received this order?” a stern-sounding Chief Justice John G. Roberts Jr. asked Malcolm Stewart, the Justice Department lawyer defending the EPA.

Stewart did not respond directly, but said compliance orders issued by the EPA give a “warning” to landowners that they may be violating the Clean Water Act. In the Sacketts’ case, the EPA asserted that laying gravel amounted to “discharging a pollutant” into a protected wetland.

The justices said the order would be read as a strong threat from a powerful agency, not a mere warning of a potential problem. “It said this is an order,” observed Justice Stephen G. Breyer. Justice Antonin Scalia said the action “shows the highhandedness of the agency.”

Justice Elena Kagan said it was a “strange position” for the government to insist the property owner had no right to a hearing.

Damien Schiff, a lawyer for the Pacific Legal Foundation who represents the Sacketts, said landowners deserve “their day in court” early in the process. They should not have to spend years seeking a permit and then going to court if their permit application is denied, he said.

Environmentalists worry that a strong ruling in favor of the Sacketts could undermine the agency’s authority to stop polluters. But the justices sounded inclined to rule that an early hearing is called for. It will be several months before the court issues a decision in the case.

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-- David Savage in Washington