Justice Samuel Alito seemed none too pleased last week with the government’s argument in a case pitting property owners against the Environmental Protection Agency.
Four years ago, Mike and Chantell Sackett bought property to build their dream home near a lake in Idaho. After obtaining local permits the Sacketts began work, pouring in some land fill. But their work came to a screeching halt when they were visited by officials from the Environmental Protection Agency. The couple was slapped with a compliance order asserting that the land is subject to the Clean Water Act and that they had illegally placed fill material into protected wetlands on their property.
A violation of the compliance order could cost the Sacketts tens of thousands of fines per day. They sought to challenge the EPA’s finding in court, but were told that that they needed to go through a permitting process first, and only after the EPA moved to enforce the order could they seek judicial review.
In court Deputy Solicitor General Malcolm L. Stewart — arguing on behalf of the EPA — stressed the couple could have been in contact with federal officials before beginning work and before the compliance order was issued.
“All we’re saying is they can’t discharge fill, wait to see whether EPA notices, and then insist upon immediate judicial review if EPA notices and objects. ”
But Damien M. Schiff, a lawyer from the conservative Pacific Legal Foundation who is representing the Sacketts, said that their world had been turned upside down.
Justice Alito seemed to agree. Listen to this heated exchange with the government lawyer:
(To listen to the entire argument follow this link: www.supremecourt.gov)