WSJ Opinion: Supreme Court Water Fight

Even the liberal Justices seem skeptical of denying judicial review.

The Obama Administration has pushed the legal boundaries of executive action and dared courts to stop it. The Supreme Court seemed inclined to do precisely that last week when the Justices heard arguments on whether decisions on land use can be immediately challenged in federal court.

The case concerns the Hawkes Company, which harvests peat for golf courses. When the company wanted to begin a peat-mining operation in Minnesota, the government got in the way. The U.S. Army Corps of Engineers issued a “jurisdictional determination” that the land contains waters of the United States and is thus protected under the Clean Water Act.

Though the property is some 120 miles from the nearest major navigable waterway, the Army Corps said the land contains wetlands and is adjacent to other waters that ultimately connect to the river. With that determination, certain uses of the lands required the company to apply for a permit, which can take years.

Hawkes challenged the decision in court, but the Army Corps argues that the company can’t do so until it has run the Corps’s permitting gauntlet. (United States Army Corps of Engineers v. Hawkes Company) Translation: You have to go through the permitting process before you can ask a court whether you need to go through the permitting process.Even liberal Justices seemed skeptical. Justice Ruth Bader Ginsburg called the permitting “very arduous and very expensive.” Justice Stephen Breyer wondered, once the jurisdictional determination is in effect, “now what happens? The person who is subject to it has to take certain steps because of the law. One, spend $150,000 to try to get an exception and fail, or two, do nothing, violate it, and possibly go to prison.” The issue, he added, “is perfectly suited for review in the courts.”

Justice Sonia Sotomayor went further. “ Mr. Stewart, may I ask you, please don’t panic by asking this question,” she asked Deputy Solicitor General Malcolm Stewart, “But assuming we disagree with you . . . what’s the narrowest way to right this that the government would like?”

In 2012 the High Court ruled 9-0 in Sackett v. EPA that the Environmental Protection Agency can’t regulate landowners’ use of their property without getting a day in court. In that case the court ruled that an EPA “compliance order” was a “final agency action” that could be challenged. Hawkes should have the same ability to appeal the Army Corps’ “jurisdictional determination.”

The oral argument was also notable for Justice Anthony Kennedy’s apparent suggestion that the Clean Water Act may be unconstitutional. “[T]he Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice,” he said. Justice Samuel Alito sounded a similar them in his concurrence in Sackett, calling the Clean Water Act “notoriously unclear.”

The death of Antonin Scalia has raised doubts about the Court’s willingness to challenge executive abuses. Hawkes is a chance for even the liberals to point out that willful agencies can’t deny citizens their day in court.

Wall Street Journal Opinion dated 3 Apr 2016 



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