January 25, 2012
A white-hot grilling for EPA at the Supreme Court
"Don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?"
- U.S. Supreme Court Justice
Oral argument was held on January 9 in Sackett v. EPA, PLF's high-profile property rights case at the U.S. Supreme Court.
It's a day that EPA would surely like to forget. The government attorney was hit with a hailstorm of rough questioning - leading The Washington Post to report: "Justices across the ideological spectrum appeared troubled by the EPA's position that Mike and Chantell Sackett do not have the right to go to court to challenge the agency's [labeling of their property as] wetlands."
ABC News' Ariane de Vogue took note. She reported that Damien M. Schiff, the PLF Senior Staff Attorney who argued the case for the Sacketts, "said that their world had been turned upside down." Justice Samuel Alito "seemed to agree," she said, and he engaged in a "heated exchange with the government lawyer."
U.S. Supreme Court Justice Samuel Alito
De Vogue linked to the audio of Justice Alito getting "fired up" (in her words) over the mistreatment of the Sacketts:
Damien Schiff's thoughts on an historic oral argument
As PLF supporters well know, the Sacketts obtained a county permit to build a three-bedroom home on their small parcel, in a residential neighborhood, in Northern Idaho. But then EPA stormed in and declared their property a "wetland," ordering them to return it to the agency's liking on pain of ruinous fines.
The issue before the Supreme Court is whether property owners can appeal this kind of EPA "compliance order" to a judge (EPA says they can't). Damien Schiff argued eloquently that the Sacketts have both a legal and a constitutional right to their day in court.
Watch his reflections on what it was like to argue this important case:
Questioning the government's lawyer
While the Justices' questions to Damien Schiff tended to deal with what kind of remedies the Court could provide the Sacketts, the grilling of the government attorney was white hot and hostile.
Justice Ruth Bader Ginsburg noted that EPA had denied the Sacketts' request for a hearing.
Justice Elena Kagan asked why EPA compliance orders should not be reviewable by the judiciary.
Justice Stephen G. Breyer observed, "For 75 years, the courts have interpreted statutes with an eye toward permitting judicial review, not the opposite." "Here," he said, "the person whom the order is directed against is being hurt a lot."
Justice Anthony Kennedy wondered how well the Sacketts could sleep at night under EPA's threats of tens of thousands of dollars per day in fines.
Justice Antonin Scalia criticized EPA "high-handedness."
Justice Samuel Alito asked, "Don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?"
Chief Justice John Roberts asked the government attorney, "What would you do, ... if you received this compliance order? You don't think your property has wetlands on it and you get this compliance order from the EPA." As USA Today reported, the government's lawyer "seemed at a loss for an answer," though he eventually conceded that the Sacketts were in an "unattractive position."
PLF and the Sacketts fight for everyone's property rights
Sign up to receive email updates on the Sackett case from the PLF Liberty Blog.
After oral argument, Damien Schiff and the Sacketts addressed the national media on the steps of the Supreme Court. "EPA must not be a law unto itself," said Schiff. "People like the Sacketts can't have their dreams trampled on without being allowed any recourse to the Constitution and the courts."
"We are grateful for the opportunity to take a stand for constitutional rights, for all Americans," said Mike Sackett. "We thank our attorneys with PLF for getting us to the Supreme Court."
Help PLF enforce the rule of law on EPA - and all regulators
"Without PLF, we wouldn't be able to go to the Supreme Court to fight for our rights, and for everyone's access to the courts when government oppresses you," said Mike Sackett. "Thank you, PLF - and thank you, PLF donors!"
PLF's lawyers depend on PLF's generous contributors. Please donate to help our attorneys keep "rescuing liberty" from coast to coast! Thank you!
Pacific Legal Foundation