WASHINGTON — The U.S. Supreme Court blunted a commonly used Environmental Protection Agency enforcement tool, siding with landowners and companies that said the federal agency was abusing its power.
The justices Wednesday unanimously ruled in favor of an Idaho couple blocked by the EPA from building a home on land the agency says is restricted wetlands. The justices said the couple can go directly to court to challenge an EPA order re-quiring them to restore property they had begun preparing for construction.
The decision weakens the force of so-called administrative compliance orders that the EPA issues on average 1,500 times a year to businesses and individuals. The orders demand an end to purported violations, applying fines that pressure owners to settle. The government had said those orders couldn’t be appealed to a court.
The ruling will have its primary impact on disputes over the Clean Water Act, the federal law that regulates the release of pollutants into U.S. waters.
“There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review,” Justice Antonin Scalia wrote for the court.
General Electric Co. supported the Idaho couple, as did groups including the U.S. Chamber of Commerce. GE last year unsuccessfully sought Supreme Court review of a similar provision in the federal Superfund law, an environmental program to clean up abandoned hazardous-waste sites.
“Until now, the government had free rein to push the limits of its authority under the Clean Water Act because the public had no check on its authority,” Deidre Duncan, a lawyer at Hunton & Williams LLP in Washington who filed an outside brief in the case for the American Petroleum Institute, said in an interview. “That has changed with this decision.”
The Natural Resources Defense Council, which sided with EPA in this case, said the decision was relatively narrow. The court “did not open the Clean Water Act up to abuse by polluters by gutting EPA’s ability to issue these orders. And it didn’t question their validity,” said Jon Devine, a senior attorney at the council.
Walter Wright, a lawyer with the Mitchell Williams firm in Little Rock who has represented landowners in EPA regulatory and legal actions, said the case’s effect in Arkansas may be muted because the federal agency has delegated a good share of enforcement responsibilities to state agencies.
However, he said wetlands enforcement cases were still a federal responsibility in Arkansas, a Mississippi River Delta state that is rich with wetlands. There are, he said, “occasional disagreements” over what constitutes a wetland.
Wright said a court could lend “fresh eyes” to a wetlands case.
“A court’s not going to have an institutional bias that an agency would,” he said.
In its ruling Wednesday, the court ducked a broader question about whether all of EPA’s administrative actions are subject to court review under a constitutional argument, said Amanda Leiter, a law professor at American University in Washington.
The fight concerns a 0.63-acre property near Priest Lake in northern Idaho. In 2007, Chantell and Michael Sackett had begun preparing the land to build a three-bedroom house when EPA officials ordered the work to halt. The agency said that the property was a wetland and the Sacketts couldn’t build without obtaining a permit under the Clean Water Act.
The EPA then ordered the Sacketts to remove piles of fill material and replant vegetation they had cleared. The order threatened the couple with fines of as much as $32,500 a day.
Wednesday’s ruling doesn’t necessarily mean that the Sacketts can build their house. The decision requires the couple to convince a lower-court judge that the EPA lacked a “substantial basis” to designate their land as a restricted wetland.
In their case, the Sacketts said they have a constitutional right to seek judicial review of the administrative order right away. A federal appeals court said the couple had to wait until regulators went to court to enforce the order before they could contest it.
“That’s regulation by sledgehammer,” Sheldon Gilbert, alawyer at the National Chamber Litigation Center, said in an interview. “No matter how confident that party was of their case,” it couldn’t let fines get run up into the millions of dollars while waiting for EPA to go to court, he said.
In a concurring opinion, Justice Samuel Alito said the government’s position would have “put the property rights of ordinary Americans entirely at the mercy” of EPA employees.
President Barack Obama’s administration and the EPA argued that the couple has ample avenues short of going to court for contesting the order without risking fines. Among other options, the Sacketts could have applied for a permit, the government said.
In 2010, the EPA issued more than 1,300 compliance orders and now will have to deliberate more carefully before going that route in the future - and be ready to go to court when they do, said Adam Kushner, a lawyer at Hogan Lovells in Washington and former director of the EPA’s office of civil enforcement.
“The agency is capable of adjusting,” he said in an interview. “But there are practical resource issues here.”
The case is Sackett v. EPA, 10-1062.
EFFECTIVE PLEA BARGAINING
In other actions, the Supreme Court ruled Wednesday in a pair of 5-4 decisions that criminal defendants have a constitutional right to effective lawyers during plea negotiations.
Because about 95 percent of criminal convictions arise from guilty pleas, the decisions represent a vast expansion of judicial supervision of the criminal-justice system.
“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined to form the majority.
Scalia took the unusual step of summarizing his dissents from the bench.
“Today’s opinions open a whole new field of constitutionalized criminal procedure: federal plea-bargaining law,” he said.
It has long been established that defendants are entitled to new trials if they can show that incompetent work by their lawyers probably affected the verdicts in their cases. The Supreme Court has also required lawyers to offer competent advice in urging defendants to give up their right to a trial by accepting a guilty plea.
The cases decided Wednesday answered a harder question: What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?
Kennedy, who wrote both majority opinions and was joined both times by the court’s four more liberal members, acknowledged that allowing the possibility of reopening cases involving rejected pleas that were followed by convictions presented all sorts of problems. But, he said, the realities of U.S. criminal justice required the court to take action.
The cases are Lafler v. Cooper, 10-209, and Missouri v. Frye, 10-444.
GUARDING CHENEY
The Supreme Court also heard arguments Wednesday on whether Secret Service agents guarding then-Vice President Dick Cheney deserve protection against a lawsuit from a Colorado man who said they arrested him for criticizing Cheney over the Iraq war.
During an hour-long backand-forth, comments by the justices suggested the main question may be whether to create a legal shield against “retaliatory arrest” lawsuits only for agents protecting top officials, or whether to extend it to all law enforcement officers.
In the case, Steven Howards is seeking damages from Secret Service agents who arrested him in 2006 at a shopping mall in Beaver Creek, Colo., where Cheney was greeting shoppers. Howards approached the vice president, criticized the Iraq war, touched the vice president’s shoulder and walked away, according to court filings. An agent later spotted Howards, questioned him and, after the man denied touching Cheney, arrested him.
The case is Reichle v. Howards, 11-262.
Information for this article was contributed by Greg Stohr and Mark Drajem of Bloomberg News, by Adam Liptak of The New York Times; by Alex Daniels of the Arkansas Democrat-Gazette and by Mark Sherman of The Associated Press.
Front Section, Pages 1 on 03/22/2012