The EPA's Compliance Order Regime Creates a Hobson's Choice

January 5, 2012

The Environmental Protection Agency's (EPA) "compliance orders" force property owners to face down one of the federal government's most notorious agencies at the risk of ruinous fines, says Timothy Sandefur, principal attorney at the Pacific Legal Foundation.

The following is a step-by-step account of one of the most notable challenges to the EPA's dominance:

  • Michael and Chantelle Sackett purchased a plot of land in Idaho in 2005 with the intent of constructing a house.
  • After construction had begun, the EPA informed them via a compliance order that their plot had been designated a wetland and that they were responsible for restoring it to its original state, along with several other duties.
  • The order informed the Sacketts that they had five months to complete this task, and that failure to comply would result in fines totaling more than $37,500 per day.
  • With no medium through which the order could be challenged, the Sacketts were forced to decide between potentially costly litigation and abject surrender.

The Sacketts challenged the EPA's compliance order in court (their case will be heard by the U.S. Supreme Court in January 2012), and though it may seem that all is well, this appearance disguises the facts, says Sandefur.  The Sacketts have had to take on enormous risk if only to have a chance to defend themselves from an autonomous government agency.  Because the EPA has expertly insulated itself from the courts and elected government branches alike, it is restrained by little oversight and has few checks on its regulating authority.

The legal argument in the Sackett case stems from the idea that the imposition of a penalty by the EPA (or the intimidating threat of impending penalties) with no allowance for argument is a violation of due process.  Courts at various levels have provided differing messages as to the validity of this claim, but the fact remains that the autonomous acts of the EPA cannot be allowed to continue to oppress law-abiding citizens without oversight.

Source: Timothy Sandefur, "Compliance -- or Else: The EPA's Compliance Order Regime Creates a Hobson's Choice," Regulation Magazine, Winter 2011-2012.

For text:

http://www.cato.org/pubs/regulation/regv34n4/v34n4-2.pdf

 

Browse more articles on Environment Issues