SCOTUS 2022-2023: Sackett v. Environmental Protection Agency

SCOTUS 2022-2023: Sackett v. Environmental Protection Agency

By: Kristin E. Goulet, Esq.

March 8, 2022

The 2021-2022 term for the Supreme Court of the United States has seen the return of in-person oral arguments after the COVID-19 pandemic forced the justices to hear telephonic oral arguments instead. This term is also the first time that Justice Amy Coney Barrett is hearing in-person oral arguments. Furthermore, this term sees the justices experimenting with a new oral argument format—time is set aside for justices to take turns asking questions on top of the traditional “free for all” questioning. One of the reasons that this hybrid format was adopted may have been the change seen in Justice Clarence Thomas, who was a more active participant during remote arguments as compared to his more quiet nature in the courtroom.

As half of the 2021-2022 term has already passed, the Supreme Court has already agreed to hear a number of cases for its 2022-2023 term. One of these cases hails from the Ninth Circuit and originated in the United States District Court of Idaho—Sackett v. Environmental Protection Agency, 8 F.4th 1075 (9th Cir. 2021). With the current trend of growing concern for preserving, protecting, and restoring the environment, it is unsurprising that this case was granted certiorari in part.

Michael and Chantell Sackett purchased a residential lot 300 feet from Idaho’s Priest Lake in 2004. They planned to build a home on the property, so after obtaining building permits from their county, the Sacketts began backfilling the somewhat soggy lot with gravel and sand to create a stable grade in 2007. About six months after the Sacketts began filling the lot, they received an administrative compliance order from the Environmental Protection Agency (“EPA”). The order stated that the Sacketts had to remove the fill and restore the property to its natural state, because the property contained wetlands subject to the protection of the Clean Water Act (“CWA”). The order also stated that the Sacketts’ failure to comply could result in civil and administrative penalties of over $40,000 per day. Shortly before the compliance deadline, the Sacketts sued the EPA, seeking declaratory and injunctive relief, on April 28, 2008.

This case has a rich 14-year history, which includes a previous granting of certiorari to determine whether the Sackets may “seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U.S.C. § 704? 2. If not, does petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?” (Sackett v. E.P.A., 564 U.S. 1052 (2011).) Following an opinion written by former Justice Antonin Scalia, the case was reversed and remanded.

The case will once again be back before the Supreme Court later this year to determine “[w]hether the Ninth Circuit set forth the proper test for determining whether wetlands is ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).” (Sackett v. Env’t Prot. Agency, 142 S. Ct. 896 (2022).) The answer to this question would be a controlling factor for current and future property owners who are considering developing properties with wetlands.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.


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