EPA headquarters. Photo: Diego M. Radzinschi/ALM

The U.S. Supreme Court’s 2012 decision in Sackett v. Environmental Protection Agency, a landmark in the conservative campaign to weaken the administrative state, could soon make its way back to the high court.

The court ruled that the Sackett family, blocked by the EPA from building a house on their Idaho half-acre lot, had the right to challenge the agency’s Clean Water Act enforcement order in court. In a 2017 Federalist Society speech, then-White House Counsel Donald McGahn praised the ruling as a win in the war against “regulatory despotism.”

But now, seven years after the court’s decision, the ruling has turned out to be a loss for plaintiffs Chantell and Mike Sackett.

On March 31, a federal district judge in Idaho who handled the Sacketts’ challenge ruled that the EPA was correct in asserting that the Sacketts’ property was a wetland protected by the Clean Water Act. The ruling by senior Judge Edward Dodge made no mention of the Supreme Court case.

“The EPA’s determination that plaintiffs’ property is a wetland is reasonable and supported by the materials in the Administrative Record,” said Lodge, an appointee of President George H.W. Bush.

The Sackett saga is not over, and may yet become another, even stronger milestone for opponents of regulatory power, now that Trump administration appointees have joined lower courts, the Supreme Court, and regulatory agencies.

“The Sacketts are clearly disappointed. They still own the property and they want to have a house built there,” said Tony Francois, a senior attorney at the Pacific Legal Foundation, which carried the Sacketts’ cause to the Supreme Court and back. “We are going to file an appeal. There were significant errors in the decision.”

But Francois indicated that the second round of the Sackett case could have broader impact than ultimately allowing the Sacketts to build their house.

Lodge’s ruling cites the 2006 Supreme Court decision Rapanos v. United States in asserting that the EPA had jurisdiction over the Sackett property, because it meets the “significant nexus” test established in Rapanos.

Because Rapanos was invoked, Francois said, “we do think the [Sackett] case would provide a vehicle to reconsider Rapanos.”

Conservatives have long criticized the “significant nexus” standard as a vague rule that could apply to most of the nation’s acreage. The court was split 4-1-4 in Rapanos, with Justice Anthony Kennedy’s solo opinion carrying the day with his “significant nexus” formulation.

Now that Kennedy has retired, his successor, Brett Kavanaugh, may have a different view, perhaps more akin to Scalia’s opinion in Rapanos. Scalia said the act only covers “relatively permanent, standing or continuously flowing bodies of water” and wetlands with “a continuous surface connection to such water bodies.”

Any new developments on Rapanos could, in turn, affect the Trump administration’s efforts to erase Obama-era definitions of “waters of the United States” and replace them with a rule that adopts Scalia’s view.

 

Read the Idaho judge’s newest order in Sackett v. EPA:

 

 


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