The case started four years ago when a married couple named Mike and Chantell Sackett received an EPA compliance order instructing them to stop construction on what was supposed to be their dream home near Priest Lake, Idaho. The government claimed their .63-acre lot was a federally-protected wetland, but that was news to the Sacketts, who had procured all the necessary local permits. Their lot, which is bordered by two roads and several other residential lots, was in fact zoned for residential use.
The Sacketts contend that the compliance order was issued erroneously and they would like the opportunity to make their case in court. Yet according to the terms of the Clean Water Act, they may not challenge the order until the EPA first seeks judicial enforcement of it, a process that could take years. In the meantime, the Sacketts risk $32,500 in fines per day if they fail to comply. And complying doesn’t just mean they have to stop building; they must also return the lot to its original condition at their own expense.
Moreover, if they did eventually prevail under the current law, the Sacketts would then need to start construction all over again. By that point they would have paid all of the necessary compliance costs plus double many of their original building expenses. And who knows how much time would have been lost. Where’s the due process in that? The Sacketts understandably want the right to challenge the government’s actions now, not after it’s become too late or too expensive for them to put their property to its intended use.
For its part, the EPA argues that old-fashioned judicial review would simply get in the way. As the agency states in the brief it submitted to the Supreme Court, “A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regulated parties, by discouraging interactive processes that can obviate the need for judicial action.”
Of course, the whole point of due process is that people sometimes do have “the need for judicial action” against overreaching government officials. Why should those people have to give up that right to the EPA? More to the point, why should the Supreme Court allow it to happen?