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Wetlands, Property Rights, and the Due Process Deficit in Environmental Law

Cato Supreme Court Review, p. 139, 2011-2012

Case Legal Studies Research Paper No. 2012-29

29 Pages Posted: 6 Sep 2012 Last revised: 26 Oct 2012

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: September 5, 2012

Abstract

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.

Keywords: Sackett v. Environmental Protection Agency, wetlands, property rights, judicial review, due process, Administrative Compliance Orders, environmental law, Clean Water Act

JEL Classification: K32

Suggested Citation

Adler, Jonathan H., Wetlands, Property Rights, and the Due Process Deficit in Environmental Law (September 5, 2012). Cato Supreme Court Review, p. 139, 2011-2012 ; Case Legal Studies Research Paper No. 2012-29. Available at SSRN: https://ssrn.com/abstract=2142114

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
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216-368-2535 (Phone)
216-368-2086 (Fax)

HOME PAGE: http://www.jhadler.net

PERC - Property and Environment Research Center

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