Categories
Environment Legal, Laws, and Regs

Sackett v EPA: Today’s the day

Today’s the day when the second Sackett v EPA case is heard in the Supreme Court. The consequences of today’s imbalanced Supreme Court could be devastating to the quality of the waters in our country.

I’ll be writing about this case after the oral arguments. In the meantime, I’m putting together a page (Sackett v EPA Documents and articles) with links to documents I’ve collected over the years. All of the court documents aren’t fully linked, but the key set of material is the EPA Administrative Record. This set of documents contains the reports and photos that form the background for the EPA case.

The Sacketts contend that they needed no CWA permit because their land was separated from Priest Lake by a road, and therefore, there is no contiguous connection between the wetlands on their land and the lake. The EPA contends that a manmade structure, such as a berm, dike, or in this case, road, does not alter the fact that the wetland does, indeed, have a significant impact on the lake.

These arguments directly relate to the question that this hearing is supposed to address. But the Sackett lawyer, the infamous Pacific Legal Foundation, decided to blow the case up by challenging what constitutes a ‘tributary’ in the Clean Water Act—a challenge that could have disastrous impact on our waters in the country.

The courts should not address the latter challenge—it’s not included in the question related to the case—but as we discovered last year, this Supreme Court plays by a different set of rules now.

You can listen to the oral arguments at this link.

Categories
Environment

Sackett v EPA: Documents and Articles

(Links in process)

The Sacketts have been at the Supreme court twice. The first time, the question was whether an EPA compliance order could be challenged in court. The Supreme Court ruled 9-0 that it could.

The second case has more far reaching consequences in that it gives the current Supreme Court license to answer the question: what exactly are the EPA-protected waters of the US (WOTUS)?

Original Case

The question was whether an EPA compliance order could be considered an agency final action, and challenged in court.

Idaho District Court

The *RECAP court docket for the original Sackett v. EPA court case in Idaho, 2008, and any freely downloadable copies of court documents it contains.

Documents not held at RECAP for this case:

Document 1-2: Attachment B

Document 1-3: Attachment C

Document 1-4: Attachment D

Document 14: Motion to dismiss

Document 15: Memorandum in support

Document 15-1: Attachment A

Document 15-2: Attachment B

Document 15-3: Attachment C

Document 15-4: Attachment D

Document 19: Response to motion to dismiss

Document 20: Reply to response

Document 22: Judgement to dismiss

Document 23: Motion for reconsideration

Document 23-1: Memorandum in support

Document 26: Memorandum in opposition

Document 27: Reply to response

Document 28: Order denying motion for reconsideration

EPA Administrative Record

The administrative record includes all documents the Department considered when making the decision.

EPA Administrative Record for Sackett compliance order, including copies of all documents.

Ninth Circuit

Copy of docket

Court decision

Supreme Court

LIMITED TO THE FOLLOWING QUESTIONS: 1. MAY PETITIONERS SEEK PRE-ENFORCEMENT JUDICIAL REVIEW OF THE ADMINISTRATIVE
COMPLIANCE ORDER PURSUANT TO THE ADMINISTRATIVE PROCEDURE ACT, 5 U. S. C. §704? 2. IF NOT, DOES PETITIONERS’ INABILITY TO SEEK
PRE-ENFORCEMENT JUDICIAL REVIEW OF THE ADMINISTRATIVE COMPLIANCE ORDER VIOLATE THEIR RIGHTS UNDER THE DUE PROCESS CLAUSE?

Docket for original Supreme Court case related to the Sacketts in 2012.

Oral arguments

Decision

Articles related to first case

Oyez overview

Cornell Law School Legal Information Institute entry

SCOTUSBlog Lyle Dennistan: Opinion recap: Taking EPA to court

ABA: Sackett v. EPA: Implications for administrative compliance

Nina Mendelson: In Sackett v. EPA, Troubling Potential for SCOTUS to Undermine Government’s Ability to Promptly Respond to Environmental Threats

Supreme Court case involving Idaho lake house ignites conservative cause against EPA

Lowell Rothschild Before and After Sacket vs US EPA

Spokesman-Review Priest Lake couple’s land dispute with EPA going to high court

NPR When Property Rights, Environmental laws collide

The Sacketts Got Their Day in Court on the Merits; Another Lesson in Being Careful What You Wish For

Craig Pittman Supreme Court gets a chance to botch another wetlands case

Sacketts likely to win Supreme Court case, law profs say

Current Sackett v EPA case

Idaho District Court

— post appeal and Supreme Court decision —

Document 54: Motion to stay litigation

Document 56: Stipulation to stay

Document 59: Government answer to complaint

Document 60: Scheduling form – litigation plan

Document 62-1: Index certification

Document 62-2: Administrative Record Index

Document 67: STIPULATION Motion to Amend the Scheduling Order

Document 73: RESPONSE to Motion re 70 MOTION to Strike

Document 73-1, Document 73-2, Document 73-3

Document 76: MEMORANDUM/BRIEF filed by Chantell Sackett, Michael Sackett Request for Judicial Notice

Document 77: MEMORANDUM/BRIEF re 76 Memorandum/Brief

Document 82: MEMORANDUM/BRIEF re 77 Memorandum/Brief

Document 84: REPLY to Response to Motion re 70 MOTION to Strike 62 Administrative Record

Document 84-1: Attachment A

Document 85: MOTION File Surreply to Plaintiffs’ Motion to Strike

Document 85-1: Memorandum in support

Document 88-1: Exhibit A – Supplemental Complaint for Declaratory and Injunctive Relief

Document 90: RESPONSE to Motion re 88 MOTION to Supplement Complaint

Document 91: REPLY to Response to Motion re 88 MOTION

Document 99: REVISED JOINT LITIGATION PLAN

Document 101: The United States’ ANSWER to 98 Amended Complaint

Document 103-1: Memorandum in support

Document 105-1: Memorandum in support

Document 105-2: Exhibit

Document 109: Response to motion

Document 112: Reply to Response

Document 116: Notice by USEPA

Ninth Circuit

Copy of docket

Document 51: Sackett supplemental brief

Document 54: EPA supplemental brief

Supreme Court

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER THE NINTH CIRCUIT SET FORTH THE PROPER TEST FOR DETERMINING WHETHER WETLANDS ARE “WATERS OF THE UNITED STATES” UNDER THE CLEAN WATER ACT, 33 U.S.C. §1362(7).

Docket for latest Supreme Court challenge.

SCOTUSBlog entries for latest Supreme Court Challenge.

Articles

EPA Proposes to Use Science to Identify Waters of the United States. I’m Shocked, Shocked.

E & E News: Pivotal Supreme Court term begins with WOTUS war

Vox: The Supreme Court case that’s likely to handcuff the Clean Water Act

High Country News: Will the Supreme Court gut the Clean Water Act?

Wetlands case tops court agenda

Will Sackett v. EPA Clarify the Scope of Federal Regulatory Jurisdiction Over Wetlands?

The Supreme Court appears determined to shrink the Clean Water Act

Supreme Court appears to back EPA in WOTUS war

General and Related

A Brief Overview of Rulemaking and Judicial Review

Development authority seeks wetland permit for Bryan County ‘mega-site’

*RECAP is an effort to make PACER federal court documents freely available to the public. People use a browser extension for RECAP when accessing a court document. A copy of that document is then also loaded to the RECAP stores and made available for everyone at no additional charge.

The documents I have were downloaded before I installed the RECAP browser extension. Unfortunately, I can’t donate them to RECAP as the organization has no way of vetting that the documents are legitimate and untainted.

Categories
Critters Environment

Deception and the House SAVES Act

The House Committee on Natural Resources will debate five bills related to the Endangered Species Act (ESA) on Wednesday. Though these bills are couched in reasonable sounding phrases and catchy acronyms, promising to make the Endangered Species Act better, make no mistake: these bills are an attack on the ESA.

The bill known as the SAVES Act, H.R. 2603, is particularly dangerous, made more so by its deception. At first glance, the bill seems to be beneficial to endangered species in the United States. Its purpose is “To amend the Endangered Species Act of 1973 to provide that nonnative species in the United States shall not be treated as endangered species or threatened species for purposes of that Act.”

It’s a reasonable sounding suggestion. After all, why should we be concerned about non-native species? We have enough work just to protect our native species.

However, removing protections for non-native species means removing protections for animals ranging from African elephants to the Green Macaw. This means that a company like Feld Entertainment would no longer need a permit from Fish & Wildlife to ship endangered big cats to circuses in Europe, and wealthy hunters can import skins from freshly killed leopards.

As US Fish & Wildlife Services notes:

The Endangered Species Act (ESA) requires the Service to list species as endangered or threatened regardless of which country the species lives in. Benefits to the species include prohibitions on certain activities including import, export, take, commercial activity, interstate commerce, and foreign commerce. By regulating activities, the United States ensures that people under the jurisdiction of the United States do not contribute to the further decline of listed species. Although the ESA’s prohibitions regarding listed species apply only to people subject to the jurisdiction of the U.S., the ESA can generate conservation benefits such as increased awareness of listed species, research efforts to address conservation needs, or funding for in-situ conservation of the species in its range countries. The ESA also provides for limited financial assistance to develop and manage programs to conserve listed species in foreign countries, encourages conservation programs for such species, and allows for assistance for programs, such as personnel and training. (emph. added)

People in the United States have been responsible for the decimation of species all over the world. Removing non-native species from the ESA would remove the ability to hold Americans accountable for our actions. It would rapidly increase the risk to any number of endangered species.

Implying that removing non-native species from the ESA is a ‘positive’ action for endangered species is a lie. The SAVES Act is a lie.

 

 

Categories
Environment Legal, Laws, and Regs

The DC Courts Yank Pruitt’s Leash

The EPA operates under very strict guidelines regarding its decisions related to rules and regulations. The guidelines were in play when the EPA released a rule to cut methane emissions in May 2016. These guidelines also worked to save the rule when Pruitt’s EPA moved to arbitrarily halt its enforcement.

In a 2-1 decision in the DC Court of Appeals today the justices rejected the EPA’s assertion that its decision to ‘stay’ the methane rule for two years was not a final agency action, and therefore not subject to court overview.

The imposition of the stay, however, is an entirely different
matter. By staying the methane rule, EPA has not only concluded that section 307(d)(7)(B) requires reconsideration, but it has also suspended the rule’s compliance deadlines. EPA’s stay, in other words, is essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule. As we explained in a very similar situation, where an agency granted an application for interim relief from a safety standard while it reconsidered that standard: “In effect, the Administrator has granted a modification of the mandatory safety standard for the entire period of time that the petition is pending. There is no indication that the Secretary intends to reconsider this decision or to vacate the grant of interim relief. Thus, the Secretary’s decision represents the final agency position on this issue, has the status of law, and has an immediate and direct effect on the parties. Therefore, we have no difficulty concluding that the Secretary has issued a final decision . . .

Categories
Environment Legal, Laws, and Regs

Several groups sue on reversal of Arctic Drilling ban

On May 3rd, several groups including Earth Justice, Center for Biological Diversity, Natural Resources Defense Council, the Sierra Club, and others joined with Alaska Native groups to sue the Trump administration for its reversal of the Arctic drilling ban.

The complaint states there is no Constitutional authority for Trump to reverse a Section 12(a) withdrawal, the authority President Obama used to ban Arctic drilling. In the complaint, the claim for relief states:

In reversing President Obama’s Arctic and Atlantic Ocean withdrawals, President Trump acted in excess of his authority under Article II of the U.S. Constitution and intruded on Congress’s non-delegated exclusive power under the Property Clause, in violation of the doctrine of separation of powers.

The lawsuit is in preliminary stages, and so far, no group has asked to intervene on behalf of the government, though I expect this to change.