The U.S. Supreme Court is scheduled to begin its new term Monday – despite the federal government shutdown. The new round of legal cases will likely continue a pattern of closely divided rulings.
But every once in a while, decisions from the highest court in the land are unanimous. That happened last year, when the justices ruled in favor of an Idaho couple challenging federal environmental regulations. But it turns out that the ruling hasn’t solved their problems. Nor has it had the big policy impact that was predicted.
In the fall of 2011, Mike and Chantell Sackett showed me around a lot they owned near Priest Lake in the Idaho Panhandle. You could still see piles of dirt and gravel where work had started on their house.
“Basically, we worked three days and this is where we got to,” Sacket said. “We were actually, the next day, the concrete guy was going to start the foundation, but that never happened.”
That’s because the Environmental Protection Agency told the Sacketts they were building on a wetland. The compliance order the agency issued threatened tens of thousands of dollars in fines – per day. And the Sacketts couldn’t challenge the order.
This is how Chantell Sackett described a phone call with one EPA official: “I said, ‘So why would I stop building my house. She said, ‘Because we told you to.’”
A few months later, at oral argument, the justices did not hide that they sympathized with the Sacketts. Justice Samuel Alito pressed the government’s attorney.
“Well, so what?” Alito said. “Somebody from the EPA says we think that your backyard is a wetlands, so, don’t build. So, what do we – what the – what does the homeowner do, having bought that property? “
The attorney started, “Well, once that …”
“’Well, all right, I’m just going to put it aside. As a nature preserve,’” said Alito.
Three months later, the ideologically divided court, in a case involving the contentious Clean Water Act no less, issued a unanimous ruling. The Sacketts won. They had the right to challenge the EPA’s compliance order.
Fast forward now to the present.
The lot near Priest Lake in Idaho is still vacant. The piles of dirt and gravel, unmoved.
“Maybe the weeds might be a little taller,” Mike Sackett says, “but it just basically looks the same.”
I reached Sackett in North Dakota, where he’s now working for a gravel company. He visits Chantell back in Idaho about once a month. The Sacketts are back in court. They’re arguing about the next step with the EPA.
“You would think that after beating them 9-0 that they would want to negotiate and get the thing done and let us get on with our life, but instead, we’re still dealing with the EPA in our life.”
The reason has to do with the very crux of the original case. The issue before the Supreme Court wasn’t whether the Sacketts land contained wetlands. It was whether the Sacketts should have a chance to argue whether the Sacketts land contained wetlands. And that’s exactly where they are now.
It’s a slow process … which brings us to the question of what the Sackett case means for environmental regulations. Conservationists worried the Clean Water Act would be far weaker if the EPA had to defend its compliance orders against polluters in court.
But the agency may have a way around that. If you go back and listen to the oral arguments at the Supreme Court, Justice Antonin Scalia, in a quick aside, even predicted an alternative to compliance orders.
“They’ll just issue warnings is what they’ll do,” said Scalia.
Warnings — like a sternly worded letter.
“If the agency’s smart, he’s dead right, frankly, and I don’t say that very often about Justice Scalia in the environmental realm. But I think he understands the agency has other mechanisms at its disposal to threaten people,” says Craig Johnston, an environmental law professor at Lewis & Clark in Portland.
As he and others expected, the Supreme Court determined that compliance orders are subject to judicial review. But the justices didn’t say anything about less formal warning letters. These have less bite, but still the same bark.
“Most people would never know the difference,” Johnston says. It wouldn’t be until they talk to their lawyer — and even then it would have to be a pretty good lawyer — to even explain the difference between the two.”
Johnston says in the end, Sackett v. EPA may just turn out to be “a speed bump.”
Of course, it still depends on what the EPA decides to do. Requests for comment were not returned before the government shut down.
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