You may have read yesterday that the U.S. Supreme Court took the Environmental Protection Agency (EPA) to the woodshed over a wetlands case in Idaho. In a unanimous decision. of all things, the Court overruled two lower court decisions (including one by the oft-overturned 9th Circuit) in a case involving landowners in Idaho who wished to build a home on property the EPA deemed a wetland. The EPA had issued a “compliance order” against the landowners, preventing them from constructing their home under fines of up to $75,000 per day. So far, all is well.
The landowners wished to challenge the EPAs decision, but were told by the agency that no such challenge was allowed, and further that no challenge to the compliance order would be allowed unless and until the EPA decided to sue the property owners. This could take years, or never happen. With fines of $75,000 a day hanging over their head, the owners were in a bureaucratic limbo. This is where the legal imbroglio began.
Now, the important issue here is that the Court did not rule on the EPA’s determination of a wetland on the property; nor did the Court rule against the Clean Water Act nor give the green light for the property owners to build on their property. What the court did is state, very plainly and forcefully, that EPA decisions are subject to judicial review under the Administrative Procedures Act. That this was ever in doubt demonstrates how unaccountable our bureaucracies have become. The ruling means two things: first, you can have your day in court against the EPA; and second – and most likely the reason for the unanimous decision – is decisions by the EPA are no longer exempt, as the government had claimed, from judicial oversight.