When the Supreme Court decided last week to take up a case over whether U.S. EPA enforcement of the Clean Water Act can lead to constitutional violations, many veteran environmental lawyers scratched their heads.

That's because just three weeks earlier, the justices passed up an opportunity to hear a case brought by General Electric Co. that stated a similar claim.

Both cases featured assertions that, in certain instances, EPA wields its authority in such a way that violations of the Fifth Amendment right to due process can occur.

The GE case, General Electric v. Jackson, involved a different statute -- the Comprehensive Environmental Response, Compensation and Liability Act, commonly known as Superfund -- but many lawyers see some similarities with the case the court did agree to hear, Sackett v. EPA.

"It's hard to understand why they took this case and not the GE case," said Seth Jaffe, a Boston-based partner at the Foley Hoag law firm.

The Sackett case, which will be argued later this year, concerns the efforts by Chantell and Michael Sackett to build a house on a half-acre parcel near Priest Lake, Idaho (Greenwire, June 28).

The Sacketts -- backed by the Pacific Legal Foundation (PLF), a conservative Sacramento, Calif.-based group that focuses on property rights -- filed suit after EPA issued a compliance order requiring them to restore wetlands they had filled.

The judge dismissed their request that they be able to immediately contest the order without going through the permitting process.

The main legal question -- whether the Sacketts' due process rights were violated -- is similar to the one posed by GE in its rejected petition (Greenwire, June 6).

GE had waged a long campaign to contest EPA's authority under the Superfund statute to issue unilateral administrative orders without giving the company a chance for immediate judicial review.

The company's high-powered lawyers, led by Kathleen Sullivan of the Quinn Emanuel Urquhart & Sullivan firm, made a similar argument to the PLF lawyers: The orders violate due process rights.

It is notoriously hard to determine why the Supreme Court -- which picks what cases it wants to hear from the thousands of petitions that are filed each year -- takes up certain cases but not others that raise similar questions.

Only four votes are needed for the court to hear a case, so to some extent it depends on the whims of individual justices.

'Overt hostility' to wetland rules?

Legal experts do agree that there are enough differences between the GE and Sackett cases to explain why the court did not treat them the same.

Holly Doremus, an environmental law professor at University of California, Berkeley School of Law, noted, for example, that the conservative wing of the court has a particular problem with wetlands regulation, which it sees, in her words, as a "breathtaking expansion of federal authority into virtually every corner of the geographic world."

The Superfund law does not attract "the same overt hostility" from those justices, which include the outspoken Antonin Scalia, Doremus added.

It was Scalia who wrote a key opinion in the major 2006 wetlands case, Rapanos v. United States, in which he -- joined by three of his conservative colleagues -- interpreted EPA's wetlands authority in a narrow way (Greenwire, Feb. 7). The court was badly split 4-1-4, with Justice Anthony Kennedy, the key fifth vote, declining to sign on to Scalia's interpretation.

Jaffe, meanwhile, noted that the reason the court took Sackett may be, in part, because of sympathy for "some small persecuted guy" caught up in a bureaucratic mess. In that scenario, GE, the giant corporation, is seen as being capable of handling its own problems.

Another interpretation is more legalistic: That Sackett more clearly presents the due process question due to differences between the Superfund law and the Clean Water Act.

As Doremus pointed out, the authority to issue administrative orders under Superfund -- aimed at clearing up potentially dangerous sites -- is based on the assumption that urgent action needs to be taken.

"Every CERCLA cleanup order is at least arguably an emergency situation," she said.

In contrast, the same sense of urgency doesn't apply to EPA's authority to regulate wetlands under the Clean Water Act, Doremus said.

Damien Schiff, the PLF attorney handling Sackett, favors the suggestion that it is the difference between the two statutes that determined which case the court wanted to hear.

"I suspect, perhaps, that the court wanted to address the judicial review question within the context of the Clean Water Act rather than CERCLA," he said.

But he also conceded the similarities between the two petitions, noting that he sent a letter to the court in April raising the issue.

Sullivan -- perhaps understandably, as her client lost out on the chance of Supreme Court review -- remains somewhat perplexed by the court's actions.

"It was disappointing they didn't take them together," she said.

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