WASHINGTON – Sacramento attorney Damien Schiff will be carrying the conservative flame Monday when the Supreme Court considers what could become the year’s hottest environmental case.
For the 32-year-old Schiff, a senior staff attorney with the Pacific Legal Foundation, the hourlong oral argument marks a personal milestone. The Monday morning session will be his first appearance before the famously aggressive questioners of the nation’s highest court.
“There is a greater intensity of preparation,” Schiff acknowledged Thursday, following a moot court session at Georgetown University Law Center. “Everyone knows that (an attorney) is lucky to have 30 seconds to make their case, and then it’s off to the races.”
But for home builders, farmers and major corporations, the case called Sackett v. Environmental Protection Agency resonates well beyond one man’s ambitions or even the wetlands protections specifically at issue. Business groups reckon the case can help roll back federal regulations along a broader front.
“The Clean Water Act has, in short, become a tool for regulators to micromanage even the most routine decisions of farmers and ranchers,” attorney Mark Stancil wrote, in a brief filed for the American Farm Bureau Federation.
Tellingly, 13 of the 14 friend-of-the-court briefs filed in the case side with Idaho couple Michael and Chantell Sackett. In a statement on the case, the Natural Resources Defense Council characterized the Sacketts’ legal allies as “industry giants.”
In sum, the Sacketts and their business allies want more leeway to challenge Environmental Protection Agency orders. Specifically, they want to be able to sue the EPA even before the agency goes to court to enforce an order.
The Sacketts ran afoul of the EPA when they sought to build a home on 0.6 acres in Priest Lake, Idaho. The home-site itself was several blocks from the lake, and the couple said they did not realize they needed a permit that’s required under the Clean Water Act for filling in wetlands with dirt and gravel.
The EPA subsequently ordered the Sacketts to “remove all unauthorized fill material” and to replant an array of trees and bushes. Regulators further warned the Sacketts they faced potential fines of up to $37,500 a day.
The Sacketts complied with the order but also sued, challenging the EPA’s authority. Judges, so far, have sided with the environmental agency.
A Boise, Idaho-based trial judge appointed by President George H.W. Bush, as well as the 9th Circuit Court of Appeals, both concluded a lawsuit is premature until regulators actually begin enforcement, such as by imposing the fine. Simply warning that a fine is possible, so far, isn’t enough to allow a Clean Water Act challenge into court.
“Courts have widely recognized that, when agencies issue such communications, a recipient who disagrees with the government’s legal or factual assessments generally has no right to immediate judicial resolution of the disagreement,” Solicitor General Donald B. Verrilli, Jr. noted in the Obama administration’s legal brief.
The Natural Resources Defense Council added in its statement that the Sacketts “chose to cut corners, and when they got caught, they blamed the EPA.” All five appellate circuits that have considered similar cases have likewise rejected pre-enforcement lawsuits like the one filed by the Sacketts. This unanimity among appellate circuits made the Supreme Court’s decision to hear the Sacketts’ case somewhat surprising, prompting speculation that the high court’s conservative majority is determined to go in a different direction.
“I think it’s fair to say that the Supreme Court doesn’t take cases simply to pat the lower courts on the back,” Schiff said.
But even if the Sacketts appear favored to win, the case’s long-term significance comes in how the justices craft their decision.
Some groups, such as the American Petroleum Institute, stress that a pre-enforcement challenge is simply permitted under existing federal law. Others, such as General Electric Co. and its attorney, former Stanford Law School Dean Kathleen Sullivan, reach further to say a pre-enforcement challenge is a constitutionally protected due process right.
A graduate of Georgetown and the University of San Diego School of Law, Schiff has worked for the Pacific Legal Foundation for about six years. He’s specialized in environmental cases; challenging in court, for instance, federal Fish and Wildlife Service protections for the California tiger salamander and for vernal pools in California’s Central Valley.
Schiff and the Pacific Legal Foundation, founded by California Chamber of Commerce members in 1973, are representing the Sacketts pro bono. Their profit, if they win, will come not in direct dollars but in precedent and publicity.
The organization’s revenues rose to more than $14 million in 2010, nearly double the amount from 2006, tax records show.