Supreme Court justices today handed the Obama administration a big loss in a high-stakes clean water case. The court ruled unanimously against the government in a case deciding when landowners can challenge certain decisions about water permits in court.
The case, Army Corps of Engineers v. Hawkes Co. Inc., centers on a North Dakota peat mining company that wants to challenge a government determination that its mining plans would require costly Clean Water Act permits. The broader issue in the case was whether the Army Corps of Engineers’ “jurisdictional determinations” about whether permits are required represent “final agency actions” that can be challenged in court. Property rights advocates and industry contend that landowners should be able to contest those decisions in court; the government disagrees.
Chief Justice John Roberts wrote the court’s opinion, finding that a jurisdictional determination approved by the corps is indeed a “final agency action” that is subject to judicial review. Justice Anthony Kennedy filed a concurring opinion, joined by Justices Clarence Thomas and Samuel Alito. Justice Elena Kagan filed a concurring opinion, and Justice Ruth Bader Ginsburg filed an opinion concurring in part and concurring with the judgment. The justices seemed skeptical of the government’s position when they heard oral arguments in the case in March.
It’s the latest wetlands case, the Obama administration has lost in recent years. In 2012, the high court ruled 9-0 against the government in another important case where property owners sought to challenge U.S. EPA enforcement actions in court.
Update provided by Russell Riggs. In his position with the National Association of REALTORS®, Russell Riggs serves as the Institute’s Government Affairs Liaison in Washington, D.C., conducting advocacy on a variety of federal issues related to land.