Wetlands, Property Rights, and the Due Process Deficit in Environmental Law
Jonathan H. Adler
Case Western Reserve University School of Law; PERC - Property and Environment Research Center
September 5, 2012
Cato Supreme Court Review, p. 139, 2011-2012
Case Legal Studies Research Paper No. 2012-29
In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands are covered, under what authority, or with what effect. As a consequence, federal wetlands regulations, as currently practiced, violates important due process principles.
Number of Pages in PDF File: 29
Keywords: Sackett v. Environmental Protection Agency, wetlands, property rights, judicial review, due process, Administrative Compliance Orders, environmental law, Clean Water Act
JEL Classification: K32
Date posted: September 6, 2012 ; Last revised: October 26, 2012
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