By Tom Hebert - September 28, 2016

Ever since the 1972 passage of the Clean Water Act (CWA), the US EPA and Army Corps of Engineers have aggressively used the statute against landowners to pursue the agencies’ desired environmental outcomes. Their regulatory process involves a series of intermediate decisions that impose great costs and risks on the landowner. This gives the agencies commanding leverage. They shield these decisions from judicial review, even if they are arguably unlawful, claiming that they are not “final agency actions.” The landowner can take the process to the end, see what their final permit requires, and then seek judicial recourse. Most landowners simply abandon the project as they can’t afford the time and expense to get to this end point. Others just pay what it costs expecting to pass those costs on to their customers.

Certainly, a large proportion of the agencies’ decisions do not fall into this category; often they are regulating what common sense tells us are jurisdictional features that merit protection or mitigation. But the coercive nature of this practice that they sometimes employ, shielded from judicial review, is fundamentally corrosive and leads to the overriding conclusion that these laws are unjust.

The first of these decisions is often a determination of whether the land is subject to the Clean Water Act; is it a jurisdictional wetland or stream? Anyone who has ever tried to sell a piece of farmland with jurisdictional wetlands or streams on it knows exactly what the decision means – the value and uses of that land are greatly curtailed, and great expense and risk that lies ahead if they push forward with the project. To many, the claim that an agency decision that results in such major limitations and expense is not a “final agency action” is nothing less than unlawful.

While it is 40+ years in the making, the Supreme Court has signaled clearly that it shares these profound concerns. Two such recent instances involve the Sackett (2012) and Hawkes (2016) decisions. In the Sackett case, the court found that the agencies’ compliance orders are "final agency action" subject to judicial review. Justices Alito and Ginsburg, known to have opposing views on many topics, both concurred. In a scathing critique of the agencies’ practices, Justice Alito concludes that “In a nation that values due process, not to mention private property, such treatment is unthinkable.” The court ruled 8-0 in favor of the landowner in the Hawkes case and followed reasoning similar to that in Sackett to provide for a challenge at the jurisdictional determination itself. Justice Kennedy, in his concurring opinion, expressed dismay over the scope of EPA’s claimed jurisdiction under the CWA, giving it an “ominous reach” that “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

These are important decisions that have wide-reaching implications and will have a fundamental influence on the implementation of federal environmental law. Next up, the WOTUS rule itself.