NRDC: EPA lawyers flubbed Sackett case

The enviros claim that the Sacket case may have had another outcome if the Supreme Court knew all the pertinent facts.

Greenwire reports:

…But some legal experts familiar with EPA say there is another side to the story, one in which the Sacketts aren’t quite innocent victims of agency overreach. It is a tale that suggests there were plenty of opportunities for the dispute to be resolved without the need of Supreme Court intervention.

Legal experts say EPA’s lawyers did not handle the case as well as they could have. That is why the case wasn’t settled earlier and why some pertinent information that might have changed perceptions about the Sacketts was not in the official record upon which the Supreme Court is required to rely.

The Natural Resources Defense Council — after obtaining some of that information via a Freedom of Information Act request — alerted the court by filing a friend-of-the-court brief, but it faced an insurmountable hurdle, as referenced during January’s oral argument.

Government attorney Michael Stewart tried to bring up some of NRDC’s findings but was sharply cut off by Chief Justice John Roberts.

“If they weren’t in the record, I don’t want to hear about them,” Roberts said. “You appreciate that rule, that we don’t consider things that aren’t in the record?”

Stewart had little choice but to concede that point.

The NRDC documents do indeed show the Sacketts in a different light, although whether that would have influenced what the Supreme Court decided is impossible to say.

The documents indicate that the Sacketts knew early on that their property probably was a wetland. An expert they hired said so in May 2007, just after EPA first visited the property but months before the agency issued the compliance order.

Furthermore, on May 23, 2007, the Army Corps gave the Sacketts a permit application and asked them to complete it.

Chantell Sackett’s own notes also suggest she recognized the land was a wetland, even if she contested EPA’s authority to regulate it.

“There appears to be some tension between these facts and petitioners’ claims,” NRDC lawyers said in the brief.

Experts on administrative law note that the additional facts would not have affected how the Supreme Court case came out. That is because the issue the court focused solely on was the question of whether EPA’s issuance of a compliance order constituted a “final agency action” under the Administrative Procedure Act.

“I don’t think it makes a difference,” said Jonathan Adler, a professor at Case Western Reserve University School of Law. “The administrative law principle doesn’t change.”

Others note, however, that it could have affected the court’s decision whether or not to take the case in the first place…

3 thoughts on “NRDC: EPA lawyers flubbed Sackett case”

  1. I read those papers that Mrs. Sackett filed and looked at pictures, maps and satellite views of their property. I read the descriptions of the land too. (I am currently writing a paper for a school report). The property seems to lie on what used to be part of a wetland that was cut off from the main part by a road and dried up. Furthermore her timeline clearly shows that she was confused about why her land was called a wetland when she saw no water and only called it a wetland when environmental scientists told her it was on the inventory map as a wetland (which proves nothing conclusively). Later, scientists assessed it was not a wetland anymore (half the property had never been wetland at all). I believe, in a confused attempt to argue it was isolated, she referred to it as a “wetlands” simply to make the argument and did not realize the legal ramifications of her statement. She said that if their is no drainage shouldn’t it be isolated wetlands. Mrs. Sackett is not a scientist or a lawyer and was confused as to whether it really was wetlands at all since it was really just dry land across the street from a shallow palustrine wetland, not a swamp.

  2. Building a house in wetlands is stupid anyhow. Water in the basement, mud on the doorstep, cars sunk to the hubs in the driveway, etc. The homeowners should have thought about all that before, and saved themselves all this trouble.

  3. The principle facts of the case don’t change. It might mean that the Sacketts intended to fight the determination from the beginning and then were thrwarted by the unexpected denial of a hearing. It might mean that they thought the expert was an idiot and that the Corps was overreaching its authority. It might mean that they were initially intending to work with the agencies, but got stubborn once they realized the lunacity of the plan.

    However, In the end, this is nothing but mudslinging.

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