Posted on August 19, 2021 by Jeff Porter
This week the Sacketts of Idaho were handed their most recent litigation defeat by a three-judge panel of the Ninth Circuit Court of Appeals which held that Justice Kennedy’s 2006 “significant nexus” test for determining the reach of the Clean Water Act remains the law of the Ninth Circuit even though subsequent EPA regulations take a different tack.
The Ninth Circuit panel first denied EPA’s request to dismiss the case against the Sacketts on the ground that it would be unfair to the Sacketts to deny them their day in court. In a classic case of “with friends like these,” the panel then ruled against the Sacketts.
The panel’s legal gymnastics to reach this conclusion could be the basis for an entire law school seminar. One thing seems certain. This won’t be the last time we’ll be reading about the Sacketts’ tangles with EPA and the Ninth Circuit which began around the turn of the century and have already involved the Supreme Court once.
For those of you new to this saga, the Sacketts purchased a wet lot on which they intended to build a home. EPA ordered them to halt that construction and remove fill they had placed on the lot based on the Agency’s conclusion that the lot was a wetland within the jurisdiction of the federal Clean Water Act and the Sacketts did not have the permit necessary to fill it. The Sacketts challenged the EPA order in court as several years later the Supreme Court determined they had the right to do.
In the Sacketts’ most recent interaction with the Ninth Circuit, the panel ruled that the ancient EPA order, which EPA specifically said it does not want to enforce, is valid because there is a “significant nexus” between the Sacketts’ lot and a Water of the United States. The panel summarily dispenses with the intervening EPA regulation in a footnote indicating that it is not controlling because EPA has said it intends to reconsider it. While this is true, the panel fails to mention that EPA has also told a District Court in the Ninth Circuit that the regulation should remain the law while EPA is doing its reconsidering.
The Ninth Circuit panel further prebuts the unavoidable conclusion that it is improperly failing to defer to EPA by reference to “the Sacketts’ primary legal argument [which] is that they are entitled to prevail as a matter of law based on the unambiguous text of the [Clean Water Act] as interpreted by the Rapanos plurality, no matter what regulatory interpretation EPA adopts.” In other words, the Sacketts apparently don’t value EPA’s rule making authority so we won’t either. This leaves us pondering the likelihood that, for the foreseeable future, it will be judges, and not the agency charged by Congress with implementing the Clean Water Act, that will be dominating the application of the Act.