Agencies, Authority, Ambiguity: The Role of Bureaucracies in Sackett v. EPA

With over 14,000 employees and a budget exceeding $9 billion, the Environmental Protection Agency (EPA) represents American bureaucracy at its finest [1].  This sizable, ponderous agency exists for the declared purpose of preserving the natural environment.  To that end, the EPA, part of the executive branch, also wields legislative and judicial functions: developing, enhancing, and interpreting environmental regulations that affect the entirety of the nation.

One such EPA regulation is the Clean Water Act (CWA), a 1972 expansion of the original 1948 Federal Water Pollution Control Act [2].  As its name implies, the CWA aims to preserve the U.S. water quality by prohibiting the release of pollutants into “‘navigable waters,’ defined as ‘waters of the United States, including the territorial seas,’” without a permit [3].  This noble goal is, nevertheless, a vague one.  Who decides what constitutes clean water? Still more fundamentally, what does the phrase “waters of the United States” mean?  Unfortunately, the CWA fails to answer this most basic question.  The ambiguity of the CWA and the consequent gap between its intentions and consequences is reflected in a 2021 Ninth Circuit U.S. Court of Appeals case, Sackett v. EPA. By illustrating the burdensome nature of nebulous regulations and the all-too-common incompetency of executive agencies, Sackett highlights the dangers of unrestrained bureaucratic power; only by returning to federalism can we reverse this disturbing trend.

Sackett’s history, to the Plaintiffs’ detriment and intense chagrin, is long and convoluted.  In 2004, Plaintiffs Chantell and Michael Sackett bought a .63-acre marshy residential property located 300 feet from Idaho’s Priest Lake [4].  After receiving county permits, the couple began filling their lot with gravel, the first step for building a home on their new property.  Soon afterwards, however, agents from the EPA and the Army Corps of Engineers “visited the property and, believing the property contained wetlands that might be subject to the CWA, suggested that work stop absent a permit from the Corps” [5]. Note the uncertainty of the language: the agents “believed” that the land “might” fall under the CWA.  Can ordinary citizens be expected to comply with laws that confuse even regulators?

Unfortunately for the Sacketts, after months of wavering, the EPA’s nebulous response crystalized into a definitive command.  Half a year after the preliminary inspection, the EPA informed plaintiffs that their boggy property held wetlands governable under the Clean Water Act.  Filling the lot with sand and gravel absent a discharge permit was thus prohibited.  The EPA ordered the Sacketts to undo the work they had done so far and reconvert their property to a wetland or face fines exceeding $40,000 per day [6].  In response, the Sacketts sued, claiming that their marshy property did not constitute “waters of the United States” and that the CWA did not apply.  Thus began the complicated procedural history of Sackett v. EPA.

Initially seeking to dismiss the case, the EPA claimed the dispute surrounded an order that “was not ‘final agency action . . . subject to judicial review’” [7].  The Supreme Court rejected the EPA’s argument, which would, in effect, give agencies unqualified power to pass orders that were “not final” but binding nonetheless, and remanded the case.  Upon further review, the district court granted the EPA summary judgment, which the Sacketts appealed.

Then came an unexpected twist: in March 2020, twelve years after first issuing the compliance order, the EPA “abruptly withdrew” the order [8].  The Sacketts, mired in legal fees and construction delays for over a decade, were shocked.  Adding insult to injury, the EPA noted that its decision was hardly a recent one. A letter from the agency to the Sacketts stated, “several years ago EPA decided to no longer enforce the [order] against you… [and] does not intend to issue a similar order to you in the future for this Site” [9]. After issuing this notice, the EPA claimed the case was moot and moved to dismiss it.  These actions raised important legal questions.  First, did the revocation of the compliance order moot the case?  If not, was the Sacketts’ property governable under the CWA?

The court held that the EPA’s argument of mootness was incoherent and rejected the agency’s motion to dismiss.  Claiming to have renounced all authority over the Sacketts’ land, the agency contradicted itself: “during oral argument, counsel for the agency was unwilling to represent that the agency lacked authority over the property” [10].  Furthermore, the actions of the EPA belied its own position: the agency had continued to pursue years of litigation after supposedly deciding not to enforce the compliance order years previously.  Thus, the Sacketts had reason to fear that the EPA might reinstate the compliance order were the immediate case dismissed.

After establishing that the case was not moot, the court explored whether the Sacketts’ property constituted “waters of the United States.”  To evaluate this question, the court turned to Rapanos v. U.S., a 2006 decision in which the Supreme Court itself struggled to decipher the CWA; not one opinion garnered a majority.  According to the Scalia plurality, “on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes’” [11].  Justice Kennedy’s concurrence articulated yet another interpretation of the phrase.  He specified that waters, including wetlands, are governable under the CWA if “either alone or in combination with similarly situated lands in the region, [wetlands] significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable’” [12]. 

Kennedy’s broad definition potentially gives the EPA authority over even the smallest marsh within the vicinity of navigable water.  Scalia’s, providing examples of navigable waters, is more specific, better in accord with common sense, and easier to conceptualize.  Nevertheless, the Ninth Circuit Court decided Kennedy’s opinion, not Scalia’s, was narrowest.  Using the Kennedy concurrence’s “significant nexus” standard for analysis, the Ninth Circuit Court ruled that the Sackett’s property was a navigable water and thus subject to the CWA [13].  Ironically, the court acknowledged that the Plaintiffs’ argument rests on Scalia’s Rapanos plurality, which the Ninth Circuit nevertheless rejected as broader than Kennedy’s concurrence [14].  Thus, despite the concession that Scalia’s opinion, not Kennedy’s, favored the civilian party and the fact that Scalia’s concurrence garnered a plurality of four justices, the Ninth Circuit ruled against the Sacketts.

The Sacketts’ unfortunate saga reflects the complexity of burdensome bureaucratic laws and the state of the American agency.  Administrative acts like the CWA are so opaque that neither civilians nor local officials nor the Supreme Court nor the EPA itself can confidently interpret them.  As one disturbing line from the Sackett decision reads, “even after more than a decade of litigation, [counsel for the EPA] could not answer questions about whether the Sacketts could develop their land” [15]. Such uncertainty and inaptitude are unacceptable, for they actively burden and outright harm citizens. The Sacketts were “stuck in the same regulatory quagmire (…) for the past thirteen years” [16].  Meanwhile, the EPA, which demanded compliance from the Sacketts despite its inability to understand its own regulations, suffered no consequences.  The Sacketts, ordinary civilians with limited resources, had everything to lose, while the EPA, a wealthy, powerful government agency, could only gain.  Is this just?

Furthermore, the EPA’s attempt to moot the Sackett case raises serious alarm about the power and role of bureaucracy.  “Forcing the Sacketts to engage in years of litigation, under threat of tens of thousands of dollars in daily fines, only to assert at the eleventh hour that the dispute has actually been moot for a long time, is not a litigation strategy we wish to encourage,” says the Sackett opinion [17].  Nevertheless, the court’s expression of disappointment is just that: the EPA will not be penalized for this outrageous scheme, highlighting once again the power imbalance between citizens and bureaucracies.

The Sackett debacle offers a chance to reflect upon the role of bureaucracy in America. The EPA’s mission of preserving the environment is a noble one; ambiguous acts like the CWA, however, hinder this goal. Equivocal, vaguely-worded legislation confuses citizens, judges, and bureaucrats alike.  The EPA, meanwhile, is incentivized to take advantage of this uncertainty and impose compliance orders, hefty fines, and legal headaches on unsuspecting citizens.  By unjustly aggrandizing its own power, the EPA detracts not only from its reputation but from its ultimate purpose: serving US citizens and the environment.

Ultimately, Sackett bids us reimagine American bureaucracy.  A massive, faceless institution like the EPA is understandably riddled with internal inconsistencies and inertia. Re-embracing federalism, however, will reverse this trend.  State and local environmental protection agencies can craft detailed regulations specific to their natural landscapes.  Unlike federal laws, local and state measures can account for regional diversity and thus allow for the inclusion of minutiae.  Precise, regionally-tailored regulations will respond to and protect the local environment more effectively.  Such detailed, explicit measures will also be easier for citizens to understand and obey.  Finally, thorough, comprehensive legislation will restrict the broad interpretive power of bureaucrats by eliminating ambiguity and, with that, the need to improvise.  The resulting increase in efficiency and clarity will benefit bureaucrats, citizens, and the environment.

A return to federalism will also revive accountability and prevent the bureaucratic shamelessness displayed in Sackett.  The EPA’s massive size lends it mystery, anonymity, and intimidating power.  Smaller state and local agencies, however, cannot hide behind institutional masks; rather, individual bureaucrats can be held responsible by others within their organization and by ordinary citizens, who can easily access bureaucrats with their questions and complaints. Elections provide another form of accountability; while federal agencies are insulated from major electoral change, citizens can more readily affect local and state agencies with their ballots.  Thus, local and state agencies have more incentive to respond to the needs and desires of citizens efficiently and effectively.

Local and state agencies cannot, however, operate in total isolation.  Ultimately, the diverse regions of the American landscape are interconnected; the actions of one jurisdiction impact others.  Therefore, the national EPA should continue to play a crucial, though limited, role overseeing collaboration between various state and local environmental agencies.  This arrangement will effectively balance national consistency with regional specificity, efficiency, and accountability.  Coupled with legislative clarity and bureaucratic accountability, a return to federalism will not merely correct the bureaucratic errors illustrated in Sackett but transform American bureaucracy for the better.

References

[1] United States Environmental Protection Agency, “EPA’s Budget and Spending,” EPA.gov, July 30, 2021.

[2] United States Environmental Protection Agency, “Summary of the Clean Water Act,” EPA.gov, September 9, 2020.

[3] Sackett v. U.S. Envtl. Prot. Agency, 19-35469, at *1 (9th Cir. Aug. 16, 2021)

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Rapanos v. U.S., 547 U.S. 715, 739 (2006)

[12] Sackett v. U.S. Envtl. Prot. Agency, at *1

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.