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Posts Tagged ‘environmental law’

An opinion piece published in the Spokesman-Review sheds some additional light on the Sackett case pending before the U.S. Supreme Court.

As we’ve written before, the Supreme Court is only deciding a procedural point about how and when the Sacketts can challenge an EPA wetlands determination. Even if the Sacketts win their Supreme Court case, they could still lose their challenge when both sides put their facts before a judge.  Indeed, based on the Spokesman-Review piece, the Sacketts may face an uphill battle.

In the Spokesman-Review, Michael Doherty, a retired biologist and wetland regulator with the Corps of Engineers writes fairly directly:

“I drove by the property in question for decades and know it is a wetland. It was frequently covered with standing water, soils were saturated, and it was covered with plants common to wetlands in the area. These are the three criteria used to identify wetlands under federal guidelines, and the property meets them all.

Beyond the science, an average person would see it is located at the bottom end of a large drainage and is very wet. Yet they claim the lot is not a wetland. So why did they need to haul fill with dump trucks for three days to prepare it for construction of their house?

The $23,000 price for two-thirds of an acre lot located less than 100 yards from the shore of Priest Lake speaks volumes. The typical price of vacant Priest Lake property is much higher and points to the substandard nature of the property as a home site. As excavation contractors, the Sacketts were amply equipped to fill the lot and prepare it for building.”

The wetland shows up in the USFWS wetland inventory. The Sacketts’ own consultant said it was likely a wetland. (Until they changed consultants, of course.)  Just because the property contains a wetland doesn’t necessarily mean that the EPA and the Corps of Engineers have jurisdiction.  But these facts and circumstances are obviously not very helpful to the Sacketts when the case comes back to Idaho after its trip to Washington, DC.

Doherty writes:

“Though portrayed as such, this is not a case of the Sacketts versus a big government fabricating a case against them. The EPA does not fabricate cases because there are wetland violations all around us, and only the most egregious are pursued. The facts of any case are analyzed and reviewed by managers and attorneys and, if weak, it does not go forward to any enforcement action, let alone to administrative orders with possible legal action. The analysis includes impact to private property rights as well because taking private property without just compensation is illegal and the government looks very carefully at this issue before making any regulatory decisions.”

Indeed, as the adage goes: When the law is not on your side, you argue the facts; when the facts are not on your side, you argue the law.  The Sacketts have been arguing the law fairly effectively. As this piece points out however, the facts have yet to be heard.

 

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By most accounts, it was a tough day for EPA in the Supreme Court on Monday. Although the Sacketts got their share of skepticism from the Justices, the EPA really took it on the chin during the oral argument of the Priest Lake wetland case.


KEA joined several other conservation organizations in a brief 
to point out that the Sacketts had ample opportunity to work with EPA and the Corps of Engineers to avoid the compliance order, and unnecessary expense, had they chosen to do so.

The issue before the court was whether a “compliance order” issued by EPA to the Sacketts for a Clean Water Act violation is immediately reviewable in a court. The Sacketts, who claim that their property has no wetlands and are therefore not under Clean Water Act jurisdiction, argued that there is no easy way to challenge EPA’s compliance order determination that a wetland exists. Moreover, they say, tough Clean Water Act penalties can accrue at a substantial rate. EPA, meanwhile, argues that the Clean Water Act doesn’t provide for an early hearing. Besides, the Sacketts would eventually get their day in court one way or another, and if EPA couldn’t prove their case, there’d ultimately be no penalties.

At the oral argument, the Supreme Court seemed openly skeptical about the compliance order. Rather than viewing it as a notice, or a warning, which would be followed by an EPA enforcement action, the Justices seemed inclined to consider it an action in and of itself. As such, they hinted that it was a “final” agency decision which should be subject to Court review.

However, Justices were also skeptical of the Sacketts’ argument that they should receive a hearing regarding the compliance order, but also if they were to lose on the wetland jurisdiction issue in the early hearing, they should get another chance to argue their case in a later enforcement case brought by EPA. In other words, EPA would have to prove their wetland case twice.

All of which goes to the real importance of the case. Enforcement of the Clean Water Act is difficult enough for EPA, which is already stretched thin. Compliance orders are designed to be a tool to shortcut formal proceedings – to provide violators with a less formal (and usually less expensive) route to compliance, without going to court and assuming all the risks and expenses that entails. If the Supreme Court finds that EPA’s compliance orders trigger additional hearings or other formalities, it will seriously impact the way Clean Water Act enforcement gets done.

Court watchers and EPA watchers are already speculating as to what EPA might do if the Supreme Court rules for the Sacketts. One guess is that the compliance orders may become less “order-like” and more “warning-ish.” A mere warning, everyone agrees, is not reviewable in Court. Would things be significantly better for the Sacketts if they had received a warning about a Clean Water Act violation as opposed to the compliance order they received? Doubtful. It could, however, delay the actual enforcement of obvious violations, which would also delay cleanup and restoration efforts.

Another guess, and most worrisome to conservation groups, is that EPA will abandon administrative processes and go directly to enforcement actions filed in court. Because of the complexity and expense of doing so, EPA might simply do less enforcement – which could be devastating for the country’s waterways.

Congress, of course, could fix all of this by clarifying what constitutes a wetland, and clarifying procedures. But that isn’t likely to happen any time soon with the current Congress. The Supreme Court’s decision is expected sometime this spring.

 

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This morning, the U.S. Supreme Court agreed to allow filing of an amicus brief in the Sackett v. EPA case which will be argued at the Court on Monday morning. (The Supreme Court’s order (pdf) is here.)  The brief is being filed on behalf of NRDC, the Waterkeeper Alliance, Idaho Conservation League, Idaho Rivers United, Lake Pend Oreille Waterkeeper, and Kootenai Environmental Alliance.

 

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The Supreme Court wetland case involving a Priest Lake lot will be heard by the Court on Monday morning, and the legal and environmental pundits have been previewing the case. The Court has yet to rule on whether a brief by conservation groups will be filed, but a ruling could come as early as tomorrow. In the mean time, here are some of the more impressive previews:

The authoritative and well-respected SCOTUS blog has its preview by legal reporter Lyle Dennison here.

For the Center for Progressive Reform, law professor Nina Mendelson describes why the case is important to environmental enforcement and suggests reforms to avoid problems in the future.

Huffington PostWashington Post and the LA Times covered the issue recently.

Our friends (and hopefully co-friends-of-the-court) at Idaho Conservation League took note with this post.

UPDATED 1/7:  NRDC has a superb post here.

 

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On Monday, the U.S. Supreme Court will hear oral arguments in the case of Priest Lake residents Mike and Chantell Sackett.  We’ve written about this complicated wetlands case before. The Sacketts are suing the EPA over a wetland determination on their property, and that a compliance order issued by EPA in the case should be immediately reviewable in a Court.

In support of the Sacketts’s position, some 13 parties filed “friend of the court” briefs to expand on the Sackett’s arguments, including heavyweights like the Farm Bureau, U.S. Chamber of Commerce, the National Association of Manufacturers, the National Association of Home Builders and General Electric.  However, when KEA joined with NRDCWaterkeeper Alliance, and several other Idaho conservation groups to file a similar brief in support of the EPA, the Sacketts filed a rare objection. The Supreme Court will likely decide whether or not to allow our brief in the next several days.

At issue is the fact that the scenario the Sacketts outline for the Court does not entirely comport to what actually happened. Documents obtained by environmental groups – including a timeline written by Chantell Sackett herself – paint an entirely different picture.

The Sacketts, who argue to the Court that they were blindsided by an EPA Compliance Order regarding the existence of wetlands on their property, fail to acknowledge to the Court that the EPA and their own consultant told them about the wetlands months earlier. (Much later, the Sacketts evidently hired another consultant more to their liking.) The Sacketts who argue about the heavy hand of the EPA fail to acknowledge to the Court that they had ample opportunity to work with EPA to resolve the issues for almost six months prior to receiving the compliance order and for months afterward. The Sacketts who claim that the wetlands permitting process and risk of fines would be financially devastating and would therefore violate their due process rights, fail to mention that an “after the fact” permit would have been very easy and inexpensive to obtain and was offered by the Corps of Engineers as an option.

The Sacketts do not dispute any of these facts. They do, however, in their opposition to our filing, try to explain them away and diminish their significance to the narrow procedural case before the Court.

Indeed, the Supreme Court may decide that the issue of whether the Sacketts’ story holds up or not is the Supreme Court’s problem, and is rather the Sackett’s problem for a later date. The theoretical issues identified by the Supreme Court in granting their review remain the same. The problem, we believe, is that the Supreme Court doesn’t decide theoretical issues, they decide actual cases. We simply believe they should have all the information in this actual case.  We’ll let you know if the Court lets us give our version of the story.

 

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The lawsuit we filed against the U.S. Army Corps of Engineers over the Rosenberry Drive trees has been almost universally well-received. Other than a few crazed online comments from the anonymously insane, we’ve received nothing but well-wishing for our effort. Even the Coeur d’Alene Press — no fan of environmental litigation — came out in favor of our lawsuit.

Despite what some people might think, going to court is not something we take lightly. A KEA lawsuit is actually quite rare. We are extremely careful that both the facts and the law are on our side, and that the issue is significant enough to expend the time and money and effort. Indeed, this is true for the vast majority of conservation organizations. It is easy to call a lawsuit frivolous, but very few of them really are. Quite literally, we can’t afford to lose many court cases.

Still, when laws are clearly violated, when the environment is clearly at stake, going to court needs to remain an option. Lawsuits should never be the first option, but they should always be available as a last resort.  Unfortunately, access to the courthouse by conservation organizations is under attack. Congress has attempted to make some laws flatly unreviewable in court. Congress has attempted to limit government payment of attorney fees, even in cases where the government loses. And there are increasing attacks on university legal clinics which, like Gonzaga Law in our case, provide pro bono representation to low income people and public interest organizations without the ability to pay.

Courtrooms are inefficient and expensive places to resolve disputes, but courts do the job with authority and finality. The rule of law is what provides civilizations with actual civilization. Courts provide an honest way of dealing with honest disputes. We’re glad that this particular lawsuit is so popular, but we’re also glad that unpopular ones can be resolved the same way.

 

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Today, Kootenai Environmental Alliance filed a lawsuit in federal court challenging the U.S. Army Corps of Engineers mandate to remove the trees along the Rosenberry Drive (“The Dike Road”) in Coeur d’Alene.  The lawsuit alleges that the Corps failed to perform an adequate environmental analysis, and that the Corps is attempting to enforce a memorandum that isn’t actually a law. The Gonzaga University School of Law’s Environmental Law Clinic represents Kootenai Environmental Alliance in this case.

In an inspection just over a year ago, the Corps of Engineers cited the City of Coeur d’Alene for more than a hundred maintenance deficiencies on the flood control equipment that purportedly protects North Idaho College and the Fort Grounds neighborhood from flooding. Among the deficiencies cited by the Corps was the fact that the hundreds of mature Ponderosa pine trees that line the earthen levee portion were in violation of the Corps’ standing vegetation policy for levees.  To correct the deficiency, the City of Coeur d’Alene was instructed to cut the trees, remove the roots, and re-construct the levee embankments. To maintain the critically important certification for the levee, the City was given two years to comply.

The KEA lawsuit alleges that, at some point, the Corps of Engineers should have performed some sort of environmental analysis for the vegetation removal – either at the national program policy level, or at the local implementation level.  The Corps has essentially done neither, which KEA alleges is in violation of the National Environmental Policy Act (NEPA).

We believe an environmental impact statement, if actually done, would show that the Corps policy would be devastating to the City of Coeur d’Alene, as well as communities around the country facing similar mandates. Moreover, a hard look at the environmental impacts would also show that there is essentially no scientific basis for a sweeping one-size-fits-all tree removal requirement.

In the lawsuit, KEA also alleges that the requirement that the City remove the trees is derived essentially from a Corps of Engineers memorandum, not actual regulations. For regulatory requirements to be enforceable, they should have been published in the Federal Register and opened up to the public for comment. That didn’t happen.

In many respects, the KEA lawsuit mirrors a lawsuit filed in California regarding the Corps of Engineers vegetation policy that would require removal of a huge swath of habitat in the Sacramento region. That lawsuit is still pending, and was recently joined by the California Department of Fish and Game.

The Corps of Engineers will be officially served with the lawsuit in the coming days. The complaint (a 20 page pdf) is available here:

2011-12-07 Complaint KEA v Army Corps

 

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