MONTGOMERY, Ala. — On Tuesday, the Supreme Court of the United States handed down a rare 8-0 decision that has been called a victory for property rights and significant blow to the Environmental Protection Agency (EPA) and the Army Corps of Engineers infamous “Waters of the United States” rule (WOTUS).
The “Waters of the United States” rule seeks to extend the EPA and Army Corps of Engineers’ regulatory reach to an indefinite number of small bodies of water, including roadside ditches, temporary streams or “any waters located within the 100-year floodplain of a traditional navigable water.”
The case, U.S. Army Corps of Engineers v. Hawkes, was brought by a Minnesota man who applied to the Army Corps of Engineers (Corps) and the Minnesota Department of Natural Resources for a permit to begin extracting peat from land once he purchased the property in October 2010. Because the regulatory process was so long and costly, the corps strongly insisted that Hawkes not buy the land. When Hawkes insisted on purchasing it anyway, the corps attempted to stop him by claiming that the property was a wetland under the jurisdiction of the WOTUS rule.
Furthermore, the Corps believed that Hawkes had no way to “fix” his issue because its interpretation of the Administrative Procedure Act did not allow for him to seek help from the courts. The Administrative Procedure Act (APA) is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions.
The Supreme Court disagreed with the Corps’ reading of the law and held that the APA does allow for the courts to “judicially review” such actions by bureaucratic agencies.
“If respondents discharged fill material without a permit, in the mistaken belief that their property did not contain jurisdictional waters, they would expose themselves to civil penalties of up to $37,500 for each day they violated the [Clean Water] Act, to say nothing of potential criminal liability,” Chief Justice John Roberts wrote in the opinion. “Respondents need not assume such risks while waiting for EPA to ‘drop the hammer’ in order to have their day in court.”
Alabama filed an amicus brief in the case in support of Hawkes. An Amicus Curiae, or “friend of the court brief”, is filed by a party not directly involved in the case and offers information that bears on the case.
“The Supreme Court unanimously ruled in favor of property owners’ rights to immediately challenge in court U.S. Army Corps of Engineers’ declarations that their property is subject to the Clean Water Act,” Alabama Attorney General Luther Strange said in a press release. “This property rights defense is even more important with the threat of an expansion of federal jurisdiction under the EPA’s Waters of the U.S. rule.”
It is crucial to note that the decision does not overturn the WOTUS rule; that was not the issue of the case. However, statements made by concurring justices encouraged litigants to continue to file property rights cases against the rule.
In separate opinions, Justices Thomas and Alito wrote explicitly of the “ominous overreach of the Clean Water Act,” while Justice Kennedy wrote, “[The WOTUS rule] continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”
Last year, Alabama joined West Virginia, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah and Wisconsin in filing a federal lawsuit in the Southern District of Georgia against the EPA questioning the legitimacy of the WOTUS rule itself. The suit is still pending in Federal Court.
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