The Supreme Court heard arguments yesterday morning in a case that could make it easier for huge corporations to pollute the country’s wetlands, rivers, and lakes—and harder for the Environmental Protection Agency do anything about that. Surprisingly, the party bringing the suit against the EPA is not a big corporation or an industry group. Instead, the case centers instead on an Idaho couple, Chantell and Mike Sackett, who are arguing the EPA has denied them their right to build a house and a shop on their land, which is a protected wetland.
In April 2007, the Sacketts started fixing up a parcel of land they had bought a few years back, in a small development just across the road from Priest Lake, in the northwestern corner of the state. A few days after the couple started filling in the land with gravel, representatives from the EPA told them their property, a wetland, qualified for protection under the Clean Water Act and that, lacking a permit, they would be required to stop construction.
At that point, the Sacketts could have applied for an after-the-fact permit meant to ease the way for small landowners to comply with the law, according to the environmental law group National Resources Defense Council, which has filed an amicus brief in the case. In fact, documents acquired by the NRDC under the Freedom of Information Act indicate that the Sacketts were offered a permit application. But the couple declined because they maintain their property is not wetlands and wanted, as Mike Sackett said later, the EPA to “prove to us that we’re doing something wrong.” Eventually, the EPA issued the couple a compliance order informing them that they were violating the Clean Water Act. If the EPA asked a court to enforce the law, the couple could be fined up to $37,500 per day for noncompliance.
The Sacketts—who are being represented by the Pacific Legal Foundation, a property rights group—dispute the EPA’s finding that they own a piece of wetland with real environmental value. And they believe they should have the right to challenge the order in court. As it stands now, they can only fight the order if the EPA chooses to go to court to enforce it.
At this morning’s oral arguments, the Sacketts found sympathizers among the court’s conservative justices, with Justice Samuel Alito calling the EPA’s actions “outrageous.” The Sacketts do make for compelling challengers. (General Electric asked the court to hear a case on a similar legal question and was turned down.) But if the court rules in favor of the couple, it will be large corporations that benefit the most.
The Sacketts emphasize that their property, which Mike Sackett calls “a perfect spot for a house,“ sits in a subdivision—they argue that a development cannot be a wetland. After years of corporations polluting waterways and poisoning aquifers, governments began to conclude that actions on one piece of land could affect communities far beyond its boundaries. A real estate company can call any tract a subdivision, but that doesn’t strip the land's environmental value.
Individuals like the Sacketts can't afford to fight the EPA over compliance orders, which is why the government offers routes like after-the-fact permits to help them comply with the law. Corporations, on the other hand, do have the resources and have shown they're willing to fight the EPA. Compliance orders are meant to give the agency the power to head off polluters before they do too much damage to the country’s natural resources, providing a way for companies to work with the government instead of forcing cash-strapped agencies to dive into protracted legal battles. As University of Michigan law professor Nina Mendelson points out, "The Clean Water Act compliance order powers are also needed for EPA to respond quickly to other urgent threats to water quality, including leaking factory outfalls, overflowing lagoons at concentrated animal feeding operations, and malfunctioning sewage treatment plants." If the Sacketts win their case, they will have helped the nation's biggest corporations cause all of those problems.