Leveling the Playing Field in David V. Goliath: Remedies to Agency Overreach

By Schiff, Damien M.; Wake, Luke A. | Texas Review of Law & Politics, Fall 2012 | Go to article overview

Leveling the Playing Field in David V. Goliath: Remedies to Agency Overreach


Schiff, Damien M., Wake, Luke A., Texas Review of Law & Politics


I. INTRODUCTION

For the past two decades, small business owners have consistently reported that regulatory burdens, and the onerous paperwork that compliance requires, are among their top concerns.1 They know firsthand how difficult it can be to obtain the necessary approvals and to meet multifarious regulatory requirements simply to make an honest living. They must navigate through the complexities of an ever-changing regulatory system governing their daily activities.2

Whereas a Fortune 500 company will have a team of compliance officers and attorneys ready to tackle regulatory issues like a swarm of wasps, a typical small business has only ten employees and lacks the financial resources to address regulatory roadblocks in the same manner.3 Without a standing army of experts, small businesses cannot efficiently clear regulatory hurdles; therefore, the cost of compliance is necessarily higher for them.4 Indeed, small business owners are put in a real bind when they cannot obtain or afford necessary permits, when their costs of compliance are too high, or when they are faced with litigating a case against a federal agency with a large and comparatively bottomless budget. Regulatory burdens bar entry into the market. They prevent many potential businesses from getting offthe ground and sometimes force business owners to forgo business opportunities, downsize, or fold up shop.5

Small business owners understand how frustrating it can be to work with regulators because they must do so on a regular basis. A typical individual, however, will inevitably feel the same frustrations when confronted with a regulatory problem in his or her personal life. Something as seemingly simple as obtaining a permit to build a modest addition to a home-on one's own property-can become an administrative nightmare. Most individuals, like most small businesses, lack the resources to defend their rights when they fall under the bureaucratic thumb of indiscriminate regulators.6

Regulators exacerbate this problem when they adopt a "shoot first, ask questions later" mentality, as demonstrated in Sackett v. Environmental Protection Agency.7 Decided this past Term in the United States Supreme Court, the case concerned the troubles of Mike and Chantell Sackett-an ordinary couple of modest means. In 2007, the Sacketts received a compliance order from the EPA alleging that they had violated the Clean Water Act (CWA)8 when they began construction on their dream home on an approximately half-acre patch of dry land in the Idaho panhandle.9 In the compliance order, the EPA asserted that the Sacketts' property was a jurisdictional wetland, but the order provided no evidence to substantiate the allegation.10 The Sacketts wished to contest the EPA's jurisdiction over their property, but the couple was denied any opportunity to challenge the Agency's compliance order. 11 According to the EPA, their only option was to take immediate action to remedy the alleged violation or face ruinous fines of as much as $75,000 per day.12 The Sacketts had to fight all the way to the Supreme Court simply for the chance to contest the EPA's jurisdiction to issue the compliance order-an order that was issued without any probable cause that the Sacketts had violated the law and without on-site analysis to confirm the existence of federally regulable wetlands.13 The absence of probable cause and supporting evidence is particularly troubling given that a jurisdictional wetlands determination is very fact-intensive and site-specific.14 Ultimately, the Supreme Court would hold that the Sacketts had a right to sue the EPA pursuant to the Administrative Procedure Act.15

In their victory in the Supreme Court, the Sacketts not only vindicated their individual rights, they established the important precedent that a federal agency cannot issue a compliance order without giving its recipient a meaningful opportunity to contest the agency's jurisdiction.16 Previously, the EPA could issue compliance orders on a whim, based only on speculative conjecture as to whether the property in question was in fact a jurisdictional wetland. …

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