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Making clear that the courts remain open for citizens who believe they are being “strong-armed” by the government, the Supreme Court on Wednesday gave property owners a right to sue the U.S. Environmental Protection Agency to make an immediate challenge to an EPA order to stop a development that the agency says threatens the nation’s waters. Faced with such an order, the targets of the EPA need not wait until the agency chooses to sue them to enforce the order; they have a right, under the Administrative Procedure Act, to sue as soon as they receive an order to which they object, according to the unanimous decision. More broadly, the ruling enhances citizens’ right generally to pick the time to mount a court challenge to government orders — provided that those orders are in a final form.


The decision, written by Justice Antonin Scalia, opens the federal courthouse door to an Idaho couple who have a .63-acre parcel of property close to Priest Lake, and plan to build a house on it. EPA considered their property to be a “wetland,” and told them to stop the development, and restore the property to its former state — or face fines that the government said could reach $75,000 a day. The EPA acted under the Clean Water Act, and it insisted — with the approval of lower courts — that the couple could not sue to challenge the order and had to wait for court review at the option of EPA. That was the result the Court overturned in Sackett, et al., v. EPA, et al. (docket 10-1062).

The Court stressed that it was not deciding whether Michael and Chantell Sackett will win their court case, but only that they had a right to file it at their choosing, now that the EPA “compliance order” is final. The decision reflected the strongly negative reaction most of the Justices had to the denial of a right to sue when this case was argued in January.