Today, the Supreme Court gave property-owners a right to sue the U.S. Environmental Agency to make an immediate challenge to an EPA order to stop a development that the agency says threatens the nation’s waters making clear that the courts remain open for citizens who believe they are being “strong-armed” by the government. Faced with such an order, the targets of the EPA need not wait until the agency chooses to sue them to enforce the order; they have a right, under the Administrative Procedure Act, to sue as soon as they receive an order to which they object, according to the unanimous decision. The ruling enhances citizens’ right generally to pick the time to mount a court challenge to government orders — provided that those orders are in a final form. The decision, written by Justice Antonin Scalia, opens the federal courthouse door to an Idaho couple who have a .63-acre parcel of property close to Priest Lake, and plan to build a house on it. When the Sacketts go ahead with their expected lawsuit, they are expected to argue that their land does not even qualify as a “wetland” subject to the Clean Water Act and that, even if it does, the EPA’s compliance order went too far. The Justices did not decide either issue, leaving that to the lower courts to deal with first. EPA considered their property to be a “wetland,” and told them to stop the development, and restore the property to its former state — or face fines that the government said could reach $75,000 a day. The EPA acted under the Clean Water Act, and it insisted — with the approval of lower courts — that the couple could not sue to challenge the order and had to wait for court review at the option of EPA. That was the result the Court overturned in Sackettv. EPA (docket 10-1062). Justice Samuel A. Alito, Jr., who was among those protesting most strongly at that hearing, wrote a separate opinion Wednesday complaining that the scope of the Clean Water Act’s application to private property is unclear, and Congress or the EPA should move to clarify it. Alito also argued that the treatment of the Sacketts, and others denied a right to sue EPA, was “unthinkable” in a country that values due process.
