Don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” So Justice Alito asked EPA’s attorney during argument of Sackett v. EPA. Tr. 37:23-25 (Jan. 9, 2012).
In Sackett, EPA was attempting to uphold a lower court’s ruling that an administrative compliance order compelling a property owner to restore an area of alleged wetlands was immune from judicial review, notwithstanding that the order required expensive remedial measures, the owners were threatened with millions in penalties for noncompliance, and the existence of wetlands subject to EPA’s jurisdiction was disputed. In its March 21 unanimous decision, the Court provided the answer to Justice Alito’s question: the Clean Water Act (CWA) does not prohibit a property owner from challenging an EPA administrative compliance order under the federal Administrative Procedures Act (APA), at least as to the existence of jurisdictional wetlands on the property. __ U.S. __, 132 S.Ct. 1367 (2012).
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