How to Beat the EPA in Court


Damon W. Root
reason.com
November 9, 2012

On March 21 the U.S. Supreme Court issued a major decision affirming the due process rights of property owners who are forced to deal with the Environmental Protection Agency. At issue in Sackett v. EPA was the agency’s use of so-called administrative compliance orders, which were essentially government commands not subject to judicial review. In its unanimous ruling, the Court refused to let these EPA actions skirt the constitutional requirements of due process. As Justice Antonin Scalia’s majority opinion put it, “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.”

Writing in the latest installment of the Cato Institute’s annual Cato Supreme Court Review, Damien Schiff, the Pacific Legal Foundation attorney who argued and won the case, offers an insider’s account of both the legal issues at stake and how he and colleagues organized their litigation. It’s a fascinating and revealing look at how public-interest lawyers go about doing their valuable work. Here’s a snippet:

Having lost in the lower courts, PLF and the Sacketts turned their attention to the Supreme Court. In strategizing over how best to present the Sacketts’ case, we were faced with a significant problem.
Generally speaking, the Supreme Court does not take up cases just to affirm the lower court and, in the Sacketts’ case, every lower court to have addressed the issue ruled the same way—no judicial review of compliance orders. We thus had two options: emphasize the national importance of the issue or identify a conflict. We chose both.

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