- Wednesday, March 30, 2016

On March 30, the Supreme Court will hear a landmark case about Clean Water Act regulation, and whether Americans have a right to their day in court if their land is labeled as “wetlands” subject to federal jurisdiction.

The hearing in U.S. Army Corps of Engineers v. Hawkes Co. would be important in any case, but it carries special significance in the wake of the passing of Supreme Court Justice Antonin Scalia. The outcome could test how durable Justice Scalia’s legacy will prove on some key issues that held special interest for him: the boundaries of federal environmental power, and the degree to which regulators are accountable to the courts.

Indeed, in one sense, the Hawkes case is fundamentally about regulatory accountability and the rule of law. From another standpoint, it is about property owners’ rights. These two perspectives merge into a single compelling question: Should landowners have the right of judicial appeal over regulatory decisions that affect their lives and livelihoods, or are unelected environmental bureaucrats their own judges and juries?

The issue is brought before the court by three related, family-owned businesses — Hawkes Co., providing peat for golf courses and other sports turf applications; and Pierce Investment and LPF Properties, which own some peat land. They are prevented from using property in Marshall County, Minnesota, because it has been designated as federally controlled “wetlands.” The designation is factually and legally questionable, so the businesses want the courts to review it. But the Obama administration argues that such wetlands “jurisdictional determinations” cannot be challenged until the property owner has navigated a long and expensive permit process — and received a denial. The High Court’s decision on which side is correct could affect property owners nationwide.

Now, one might ask what the Clean Water Act has to do with peat. After all, the Act on its face only covers “navigable waters.” Yet the Corps and the Environmental Protection Agency have interpreted that phrase — and its statutory equivalent, “the waters of the United States” — to cover nearly every wetland, stream, creek, and pond in the country.

Justice Scalia fought back against that very broad interpretation. For example, in a 2006 plurality opinion in Rapanos v. United States, he criticized the agencies’ claimed power to regulate “storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.” He called this “an immense expansion of federal regulation of land use” that “would befit a local zoning board.”

“The only plausible interpretation” of the Clean Water Act’s scope, he contended, would be much more restricted, limited to “those relatively permanent, standing or continuously flowing bodies of water that are described in ordinary parlance as ’streams[,] … oceans, rivers, [and] lakes.’”

However, Rapanos was a split decision, so controversy has continued over how broadly the Clean Water Act extends over America’s waters and property owners.

Naturally, that controversy has made issues of judicial review exceptionally important. In Hawkes, federal officials denied that wetlands designations could be directly challenged in court, claiming they are not a “final agency action.” Although the Eighth U.S. Circuit Court of Appeals rejected the Corps’ position, the Obama administration continued to press it, so the Supreme Court agreed to decide for the entire nation.

Justice Scalia’s legacy looms large because the issue in Hawkes is closely related to another recent Supreme Court decision on the Clean Water Act, which he authored and which struck a blow for landowners’ access to the courts. In Sackett v. EPA, an Idaho couple wanted to build a family home in a residential subdivision. While their homebuilding project was underway, EPA hit them with a “compliance order” alleging that they had filled in federally regulated wetlands without a Clean Water Act permit. The Sacketts tried to challenge the order in court, but the lower courts ruled that they had no right to do so. Instead, their options were to go along with the agency’s demands, or wait for the agency to sue them, or proceed through an onerous and fruitless administrative process.

The Supreme Court unanimously rejected this denial of the right to appeal. Justice Scalia declared that landowners who receive compliance orders may challenge them in court. Rejecting EPA’s arguments to the contrary, he cogently explained that the “mere possibility that an agency might reconsider does not suffice to make an otherwise final agency action nonfinal.” He concluded there is “no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ’voluntary compliance’ without the opportunity for judicial review.”

The Supreme Court granted review in Hawkes just a few months before Justice Scalia’s death. The case gives the court an excellent opportunity to uphold his legacy of insisting on common sense and fairness in environmental regulations, and on the vital principle that bureaucrats are not a law unto themselves.

Damien Schiff is a principal attorney with Pacific Legal Foundation, which is representing the businesses suing the U.S. Army Corps of Engineers in the Hawkes case. He successfully argued the landmark Clean Water Act case of Sackett v. EPA at the Supreme Court.

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