On Monday the U.S. Supreme Court heard arguments in Sackett v. EPA, a case destined to join the ranks of key land use regulation decisions known to the land use hip as “takings” cases, and one that could end up significantly hampering the EPA’s power to protect the environment.
Why “taking?” Because all such cases involve government--either through regulation or an outright land grab--denying a private property owner the use of his or her land, thereby “taking” it from the land owner.
These cases can be pretty scary for any public official in the land use or economic development game, because they always speak to the range and depth of power that government has when it comes to regulating land or pursuing economic development that involves condemnation. Either that, or they relate to the types of appeal and relief landowners can pursue in response to government action.
But there’s one other characteristic of these cases worth mentioning: Too often they do involve what at first glance—and often second glance, too—government overreaching, or at least, government beating up on the little guy, which means that some serious case law is being created when the facts of a case might be pretty dismal for the government side. Better in some instances that government throws in the towel than go to the legal mat—especially when that mat is the highest court in the land.
And the facts in Sackett, although somewhat muddled, don’t bode well for government: In 2005, Chantell and Michael Sackett bought a small lot on a lake in northern Idaho, part of a subdivision that had been substantially built out. The Sacketts proceeded to begin filling in a portion of the lot in order to build their house, whereupon they received a notice for the EPA to stop work and return the parcel to wetland under penalties that could reach tens of thousands of dollars a day.
Naturally, the Sacketts were interested in appealing the EPA’s designation and action, and looked into the possibility of taking the EPA to court. But EPA argued that under the U.S. Clean Water Act, no judicial appeal was possible; that the Sacketts would have to wait until the EPA brought it’s court action before the Sacketts could have their day in court.
So the Sacketts decided to go to court anyway, to challenge the EPA’s assertion that alleged violators have no initial judicial recourse to fight regulatory action under the CWA. If the USJC decides in favor of the Sacketts, the EPA could find itself routinely being dragged before judges every time it enforces under the CWA, which environmentalists say will seriously hamper EPA’s ability to protect U.S. wetlands. If the USJC decides in EPA’s favor, then Sackett supporters say the public can expect more arbitrary, capricious and heavy-handed regulatory action by the EPA like that seen in the Sackett case.
The lesson here, even absent a USJC decision: Bureaucrats involved in land use regulation need to think hard about when to enforce, as well as what remedies they request if they do decide to enforce. While the power to regulate land use should never be applied unevenly or arbitrarily, government agencies—local, state and federal—can exercise discretion in how such power is applied. There are always going to be those instances where the fight that government officials decide to pick is not even remotely worth the risk when it comes to how a court ruling might affect their ultimate regulatory power to protect and enhance the public’s health, safety and welfare.
Probably even more important, though, regulatory agencies really need to think hard about how their actions will play in the court of public opinion. And when it comes to public opinion, there’s nothing that those who argue in favor of severe curbs on government’s regulatory power love more than a story like the Sackett’s
Written and compiled by staff writers and editors, GOVERNING View is an on-the-ground, and sometimes behind-the-scenes, look at the topics we're covering in print and online. From notes on what's up in statehouses, county courthouses and city halls, to encounters with people, places and things, GOVERNING View is a window into the side of state and local government you don't always see.