Supreme Court justices are notoriously opaque when it comes to detailing why they take up some cases but reject seemingly similar appeals. This trait was pushed front and center this week as the Supreme Court decided to hear debate on EPA enforcement of the Clean Water Act despite rejecting a similar case brought by General Electric Co. just three weeks earlier, reports the New York Times. Both cases claimed that the EPA routinely violates due process under the Fifth Amendment, but environmental lawyers predict the Supreme Court decided to hear Sackett v. EPA because it included the question of wetlands regulation, to which the Court has previously shown “overt hostility.”
General Electric v. Jackson resulted from GE’s lengthy campaign to contest the EPA’s authority to implement the Superfund statute without giving the company enough opportunity for judicial review. But the case essentially boiled down to the same due process concern cited in Sackett. “It’s hard to understand why they took this case and not the GE case,” said Seth Jaffe of the Foley Hoag law firm. He added that the Court may have chosen Sackett because it involves “some small persecuted guy,” rather than a giant corporation.
What’s more likely, said UC Berkeley environmental law professor Holly Doremus, is that Superfund cleanup projects require urgent responses to “an emergency situation.” When it comes to Clean Water Act regulations, on the other hand, the Court has signaled in past decisions that regulation of potentially contaminated wetlands does not constitute an urgent need. In the 2006 case Rapanos v. United States, for example, Justice Anthony Kennedy sided with the Court’s plurality that regulation requires contamination that “significantly affect the chemical, physical, and biological integrity of other covered waters.” That’s more difficult to prove than what the EPA deems significant contamination at Superfund sites.
At issue in Sackett is whether Michael and Chantell Sackett had their due process rights violated by the EPA when it halted construction on their house due to fill material placed too close to wetlands, a violation of the Clean Water Act. A federal judge and the 9th Circuit Court of Appeals both dismissed the complaint because they had the opportunity to contest the EPA claims in court. But the Sacketts’ attorneys at the Pacific Legal Foundation argue that this creates an “impossible situation” because the Sacketts “must either run the risk of ruinous penalties or imprisonment.” Their lawyers say this process could cost more than 200,000, which exceeds the price of the property.
Some environmental lawyers are predicting that the Supreme Court will side with the Sacketts, due to the apparently hostile view of wetlands regulation adopted in Rapanos. But the fact that the Supreme Court decided to hear this case as opposed to the General Electric case indicates a larger message that the Court may be more sympathetic to individuals, like Rapanos and Sackett, than major corporations when it comes to EPA enforcement.
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