According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are final agency subject to judicial review. The reach of Sackett expands a bit more.
As we noted after the 8th Circuit decision in Hawkes, the government does not have a weak position on the law. There are plenty of reasons to find that JDs are not final agency action and, indeed, until Hawkes, that was the conclusion of the circuit courts to decide the issue. What’s really interesting from a jurisprudential point of view is the Court’s apparent focus on the practical impact of Corps jurisdictional determinations.
What is the practical impact of a JD that finds a property is subject to CWA requirements? We all know the answer to that. The property owner is screwed. It’s the dilemma at the heart of all of these cases. The government wields a mighty power of coercion. It is salutary when courts recognize the power of government coercion and take measures to restrain it.
The problem in this specific case – and the courts are supposed to decide specific cases – is that JDs are not a creature of statute. They are a creature of regulation, intended to help property owners by giving them the opportunity – which they don’t have to utilize – to determine in advance whether a particular project is in a wetland and would be subject to jurisdiction. What happens if the response of the Corps to a decision in favor of Hawkes is to revise the regulations to eliminate the JD process entirely?
It is true that the burden would then shift back to the government. Property owners who believe that they are not subject to the CWA could then simply commence projects, forcing the government to take enforcement action to stop the project. Given limited governmental resources, that burden shifting may make a difference.
But what about property owners who genuinely want to comply? For them, the absence of the JD process would be a real loss. As the 5th Circuit noted in Belle Company v. Army Corps of Engineers, in which the court held that JDs are not subject to judicial review:
authorizing judicial review of JDs, to the extent that it would disincentivize the Corps from providing them, would undermine the system through which property owners can ascertain their rights and evaluate their options with regard to their properties before they are subject to compliance orders and enforcement actions for violations of the CWA.
I hope that property owners don’t end up regretting this case.