Supreme Court’s WOTUS decision means more judicial scrutiny of government decisions

In law school, my civil procedure professor’s favorite quip was that he would gladly let his opposing council choose the substantive law if he could pick the procedure used to decide the case. Although the goal of the courts is to do justice, they pursue that goal with a process that has a thousand little technicalities that trip up the unwary. Consequently, cases that are seemingly boring procedural decisions can have a big real-world impact.

Photo courtesy of Joe Ravi

The Supreme Court’s decision last week in the WOTUS case is the latest example of the Court issuing a boring procedural decision with a big practical impact. The case decided a seemingly simple question: may challenges to the WOTUS rule be brought in federal district courts (the usual place) or are such challenges only reviewable in the courts of appeal (a rare, but not unprecedented procedure). The unanimous opinion, written by Justice Sotomayor, is exactly what you’d expect a procedural judicial decision to be (dull).

But the result will have a big impact by making it easier for anyone to challenge illegal government action. The most important part of the decision rejects the government’s policy arguments against normal judicial review of major regulatory rules.

The government argued, reasonably, that having to defend a rule in dozens or hundreds of district courts is spectacularly inefficient, whereas allowing a single consolidated challenge in an appellate court will be easier and provide the government greater certainty. But that efficiency would have come at great cost.

If challenges could only be filed in the appellate court, challenges would only have 120 days (instead of the usual 6 years) to bring their case, a deadline that only the most sophisticated industry groups could meet. By rejecting the government’s efficiency argument, the Court kept the courthouse doors open to the little guy: small property owners, environmentalists, and others who are unlikely to learn about new regulations that quickly, much less be able to mount a credible challenge to them.

Access to courts, and serious scrutiny by judges, can have a huge impact on how regulators make decisions. For instance, the much celebrated Sackett v. EPA decision—which gave property owners accused of violating regulations and threatened with massive, accumulating fines (although not yet fined)—has dramatically changed how regulators interact with property owners.

In the Clean Water Act context, from which Sackett arose, EPA had previously had tremendous leverage over property owners: by merely accusing the property owner of a violation, the agency could start the clock on $37,500 in potential daily fines (which accrue at a rate of $1 million per month). Once the accusation had been made, EPA could sit back and wait for the property owner to give in, as the risks from the mounting fines grew too great. Justice Alito highlighted that basic unfairness in his concurrence.

The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

Since landowners won the right to challenge unlawful compliance orders, they have used that right to great effect. In many cases, the government has quickly backed down, once sued, rather than defending its decision to threaten the property owner. That change invites the question how many unjustified compliance orders were issued before property owners’ rights were recognized and how many people simply gave in to illegal demands for want of any better option.

The impact of Sackett has not been limited to litigation success. Undoubtedly, regulators are more cautious about issuing compliance orders, since they know that their work might later be reviewed by a court. If the don’t do their homework before hand, they may jeopardize enforcement in a case where a property owner or business actually committed a serious violation.

The WOTUS decision could have a similar impact. Increased access to courts benefits both property owners and environmentalists. At a minimum, the latter will benefit from the WOTUS decision in any challenges to the Trump Administration’s revision of that rule.

But the impacts could extend far beyond WOTUS. In fact, environmentalists are already seizing on the WOTUS precedent to expand access to the courts to challenge reduced regulations for power plants’ toxic discharges. If regulators know that their decisions can be challenged by more people with more diverse environmental interests, and reviewed more closely by many different courts, they will have little choice but to carefully scrutinize the impacts of their decisions.


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