The U.S. Supreme Court on Wednesday shortened the chain that restrains Leviathan, if only by a link or two.

In a 9-0 decision, the court ruled that Environmental Protection Agency regulations are subject to judicial review. That should be a common-sense principle, a belief supported by the justices' unanimity — and upheld by the Fifth Amendment, which declares that no person shall be "deprived of life, liberty, or property, without due process of law."

The case of Sackett v. EPA turned on what constitutes a regulation.

An Idaho couple, Michael and Chantell Sackett, bought a .63-acre parcel zoned for residential construction and acquired the necessary permits for building a home. Shortly after the couple began filling the site with dirt and gravel to prepare it for construction, the EPA stepped in and declared their plot a wetlands protected by the Clean Water Act. The agency ordered the Sacketts to restore the land to its original state or face up to $75,000 a day in fines.

The Sacketts sought to appeal the ruling in court, but the agency argued that the couple were not entitled to sue — it had issued only a compliance order, which the agency considered merely a step in the deliberative process. Only when a "final action" had been taken could legal redress be pursued. A federal judge and the Ninth U.S. Circuit Court of Appeals agreed with the EPA and threw the lawsuit out.

The Supreme Court, however, saw the EPA move for what it was: arrogant and disingenuous.

The agency was asserting the power to force citizens to comply immediately or face mounting, crushing fines — and at some point down the road, perhaps years later, it would conclude its bureaucratic paper-shuffling (and it might even change its mind). Only then could property owners challenge the ruling. Otherwise, they are in limbo, under the government boot and unable to use their land as they see fit — or paying ungodly sums in penalties to wait it out.

The government was essentially arguing that just because it forces a party to comply with what it deems a violation of federal law, doesn't mean it's actually doing anything substantive that would allow the party to challenge the legality of it.

The justices rightly saw this as bureaucrats holding property owners hostage.

They ruled that the Sacketts have the right to challenge the EPA order in court under the Administrative Procedure Act (APA). The compliance order, Justice Antonin Scalia wrote, "has all the hallmarks" of a final order that meets the APA threshold for legal action. The EPA " 'determined' 'rights or obligations,'" and "the issuance of the compliance order also marks the 'consummation' of the agency's decisionmaking process."

The court did not weigh in on whether the Sacketts were justified in suing the EPA ruling, only that the couple should have the opportunity to make their case in court. In a concurring opinion, though, Justice Samuel Alito criticized the Clean Water Act for being "notoriously unclear" and unpredictable, and cited Congress for failing to resolve this "critical ambiguity."

"Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing," Alito wrote, "but only clarification of the reach of the Clean Water Act can rectify the underlying problem."

Kudos to the court for affirming that regulatory agencies are still accountable to the people, not fiefdoms above the law.

REPRINTED FROM THE PANAMA CITY NEWS HERALD

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