A Nebraska couple is suing the Environmental Protection Agency for the right to contest an environmental fine in open court, instead of before an internal EPA panel.
Their lawsuit against EPA was filed April 20, six days after the Supreme Court ruled 9-0 that federal agencies cannot preclude plaintiffs from seeking immediate relief in law courts instead of waiting until their internal agency processes are exhausted, often a lengthy and expensive process.
According to the Pacific Legal Foundation, which is representing the couple along with the Kansas Justice Institute, Amy and Thomas Villegas bought a piece of rural land in Nebraska and began clearing it for recreational use. As an excavator, Thomas Villegas was familiar with Clean Water Act regulations. Unknown to them, a neighbor complained to EPA, which threatened the Villegases with $300,000 in fines for allegedly contaminating “waters of the United States” with dirt fill and noxious weeds.
The EPA is insisting that the Villegases must proceed before an administrative law judge of the EPA itself. Any appeal of that decision goes
to the agency’s Environmental Appeals Board, another internal EPA board.
The EPA’s move against the Villegases raises a number of questions. The Supreme Court is in the midst of hearing Sackett v. EPA, which could decide on a definition of “waters of the United States” that supersedes earlier definitions that have sparked endless lawsuits and rival regulatory schemes going back to the Obama administration. A ruling on Sackett is expected by June. The Pacific Legal Foundation is also representing the Sacketts, the plaintiffs in Sackett v. EPA, who have been fighting fines for improving their Idaho property for 15 years.
In addition, the Supreme Court ruled 9-0 April 20 in Axon Enterprise Inc. v. Federal Trade Commission (consolidated with a similar case, Cochrane v. SEC) that plaintiffs do not have to go through internal federal review procedures before taking their case to court.
While the ruling was unanimous, two justices offered differing rationales for that ruling. Justice Neil Gorsuch wrote in a concurring opinion that according to the plain language of the federal statute governing what is a “federal question,” “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Not may have jurisdiction, but shall.” Federal agencies cannot usurp or postpone those rights of appeal in open court.
Justice Clarence Thomas, on the other hand, relied on three tests from earlier rulings collectively known as Thunder Basin factors that determine in which venue an appeal must be pursued. Thomas wrote that “when private rights are at stake," such as "the three ‘absolute’ rights, life, liberty, and property," then "full Article III adjudication is likely required." In other words, whenever those rights are at issue, plaintiffs always have immediate recourse to federal courts, and do not have to wait for internal administrative procedures to be exhausted.
The Villegases’ case is titled Thomas Villegas et al. v. Michael S. Regan et al.
David Murray can be reached at [email protected].
