No. 10-1062

IN THE

gouprente Court of the niteb States%

CHANTELL SACICETT and MICHAEL SACKETT,Petitioners,

V.

UNITED STATESENVIRONMENTAL PROTECTION AGENCYand LISA P. JACKSON, Administrator.,

Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN CIVILRIGHTS UNION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

PETER J. FERRARACounsel of Record

AMERICAN CIVIL RIGHTS UNION

310 Cattell StreetEaston, PA 18042610-438-5721

peterferrara@msn.com

Counsel for Amicus CuriaeAmerican Civil Rights Union

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002

CORPORATE DISCLOSURE STATEMENT

The ACRU is a non-profit, non-stock corporation.Consequently, the ACRU has no parent corporationsand no publicly held company owns more than 10% ofthe corporation's stock.

(i)

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT

TABLE OF AUTHORITIES ................................ iv

INTEREST OF THE AMICUS CURIAE ........... ......... 1

SUMMARY OF ARGUMENT ............................. 2

STATEMENT OF THE CASE ............................ 4

REASONS FOR GRANTING THE WRIT ......... 7

I. CERTIORARI SHOULD BE GRANTEDBECAUSE THIS CASE PRESENTSIMPORTANT QUESTIONS OF LAWWITH SUBSTANTIAL NATIONALIMPACT .............................................................. 7

II. CERTIORARI SHOULD BE GRANTEDBECAUSE THERE IS A CONFLICTAMONG THE CIRCUIT COURTSTHAT SHOULD BE RESOLVED ........... 12

CONCLUSION ..................................................... 14

ivTABLE OF AUTHORITIES

CASES

Board of Regents v. Roth,408 U.S. 564 (1972) ..............................

Davidson v. New Orleans,96 U.S. 97 (1877) ...................................

Ex Parte Young,209 U.S. 123, 148 (1908) ......................

Fuentes v. Shevin,407 U.S. 67 (1972) ................................

Goldberg v. Kelly,397 U.S. 254 (1970) ..............................

Mathews v. Eldridge,424 U.S. 319 (1976) ..............................

MedImmune, Inc. v. Genentech, Inc.,549 U.S. 118 (2007) ..............................

Ochoa v. Hernandez y Morales,230 U.S. 139 (1913) ..............................

Rapanos v. United States,547 U.S. 715 (2006) ..............................

Tennessee Valley Authority v. Whitman,363 F. 3d 1236 (11th Cir. 2003) ...... 6,

Thunder Basin Coal Co. v. Raich,510 U.S. 200 (1994) ..............................

Wilkinson v. Leland,27 U.S. 627 (1829) ................................

STATUTES

Clean Water Act, Section 1319(c)(1)-(2)

10,

Page

7

7

10

7

7

7

10

7

9

12, 13

9, 10

7

9

VTABLE OF AUTHORITIES—Continued

Page

REGULATIONS

33 C.F.R. Sect. 326.3(e)(1)(ii) ................................ 8

OTHER AUTHORITIES

Andrew I. Davis, Judicial Review ofEnvironmental Compliance Orders, 24Envtl. L. 189, 223 (1994) .......................... ....... 10

Richard A. Epstein, Takings: PrivateProperty and the Power of EminentDomain (Cambridge, MA: 1985) ............. ....... 12

Christopher M. Wynn, Note, Facing aHobson's Choice? The Constitutionalityof the EPA's Administrative ComplianceOrder Enforcement Scheme Under theClean Air Act, 62 Wash. & Lee L. Rev1879, 1920 (2005) ...................................... ....... 11

IN THE

Oupreme Court of the niteti eptateo

No. 10-1062

CHANTELL SACKETT and MICHAEL SACKETT,Petitioners,

V.

UNITED STATESENVIRONMENTAL PROTECTION AGENCYand LISA P. JACKSON, Administrator.,

Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN CIVILRIGHTS UNION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE'

The American Civil Rights Union is a non-partisan,non-profit, 501(c)(3), legal/educational policy organi-zation dedicated to defending all of our constitutionalrights, not just those that might be politically correct

1 Peter J. Ferrara authored this brief for the American CivilRights Union (ACRU). No counsel for either party authored thebrief in whole or in part and no one apart from the ACRU madea monetary contribution to the preparation or submission of thisbrief. All parties were timely notified and have consented to thefiling of this brief.

2or fit a particular ideology. It was founded in 1998by long time policy advisor to President Reagan, andthe architect of modern welfare reform, Robert B.Carleson. Carleson served as President Reagan'schief domestic policy advisor on federalism, andoriginated the concept of ending the federal entitle-ment to welfare by giving the responsibility for thoseprograms to the states through finite block grants.Since its founding, the ACRU has filed amicus curiaebriefs on constitutional law issues in casesnationwide.

Those setting the organization's policy as membersof the Policy Board are former U.S. Attorney General,Edwin Meese III; former Assistant Attorney Generalfor Civil Rights, William Bradford Reynolds; formerAssistant Attorney General for the Office of LegalCounsel, Charles J. Cooper; John M. Olin Distin-guished Professor of Economics at George MasonUniversity, Walter E. Williams; former HarvardUniversity Professor, Dr. James Q. Wilson; formerAmbassador Curtin Winsor, Jr.; former AssistantAttorney General for Justice Programs, RichardBender Abell and former Ohio Secretary of State J.Kenneth Blackwell.

This case is of interest to the ACRU because wewant to ensure that all constitutional rights are fullyprotected, not just those that may advance a partic-ular ideology. That includes the rights to propertyand to Due Process of Law protected by the FifthAmendment.

SUMMARY OF ARGUMENT

Petitioners Chantell and Michael Sackett pur-chased a residential lot in a residential neighborhood,zoned and permitted by local authorities for

3construction of their home. After they began earth-work prepatory to such construction, they received aCompliance Order from the EPA effectively rulingthat moving around dry earth and fill materials ontheir residential la to begin their homebuildingproject somehow involved discharge of a pollutantinto the navigable waters of the United States inviolation of the Clean Water Act. The ComplianceOrder commanded the Sacketts to cease constructionof their home, bear the costs of restoring the propertyto its previous condition, undoing all of their con-struction activity, and leave the property untouchedfor a period of years, with no clear opportunity everto commence building.

The Sacketts were denied any hearing to contestthe Compliance Order by the EPA and by the courtsbelow. The Ninth Circuit held that to get a hearingthe Sacketts had the choice of bearing the intractablecosts of applying for a permit to discharge pollutioninto the navigable waters of the United States bybuilding their home on a residential lot, as if theywere a major industrial enterprise actually engagedin real pollution, and then seek judicial review of anysuch denial, with no prospect of getting back theintractable costs of any such application. Or theycould ignore the Compliance Order, running the riskof bankrupting fines and even criminal liabilities,and then raise their contesting claims in an enforce-ment action.

This Hobson's choice violates the constitutionalrequirements of Due Process of Law, which unques-tionably protect Petitioners' property interest inbuilding their own home. It involves a regulatorytaking as well in violation of the Takings Clause, asthe Sacketts are indefinitely denied the use of their

4property for the residential purpose for which theypurchased it, and any other meaningful use, effec-tively leaving them required to maintain it as apublic park indefinitely. The Sacketts represent oneexample of potentially thousands of similar constitu-tional violations across the country. This case conse-quently presents important questions of law withnational impact which we submit should be resolvedby this Court.

Moreover, the ruling of the Ninth Circuit below isin direct conflict with an analogous ruling of theEleventh Circuit. Consequently, we submit therequested Writ of Certiorari should be granted toresolve this conflict.

STATEMENT OF THE CASEPetitioners Chantell and Michael Sackett pur-

chased a half-acre lot in a built-out area of residentialdevelopment near Priest Lake, Idaho for the purposeof building their home on the property. Pet. App. A-2, E-2. Local authorities have zoned their lot forresidential construction, and provided an existingsewer hookup. Pet. App. E-2.

Obtaining all required building permits from thelocal authorities, the Sacketts employed contractorswho began earthmoving work to prepare the site forhome construction. Without any reason to think thatsuch home construction activities on the dry land oftheir residential property in a residentially developedneighborhood involved the Clean Water Act (CWA) orthe Environmental Protection Agency (EPA), Pet.App. E-2, the Sacketts nevertheless received aCompliance Order from the EPA effectively ruling exparte that their home building activities had violatedthe CWA by illegally dumping fill materials into

5jurisdictional wetlands supposedly on their land.Pet. App. G. Somehow, the EPA found that theSacketts moving earth around on their residential lotin a residential neighborhood involved "the dischargeof a pollutant" into the "navigable waters" of theUnited States.

The Compliance Order required the Sacketts toimmediately cease construction of their home, despitebuilding authorization from the local authorities.Indeed, the Compliance Order required them insteadto finance costly restoration work, removing all fillmaterial and replanting, followed by a three-yearmonitoring period during which the Sacketts had toleave their residential land entirely untouched. Pet.App. G-4 — G-6, H-3. In addition, the ComplianceOrder imposed costly civil penalties on the Sacketts ifthey failed to comply with the Order's dictates. Pet.App. G-7.

The Sacketts next found that there was nowherethey could challenge the EPA's Compliance Order, atleast without incurring costs and delays suited to amajor industrial enterprise rather than to a retiringcouple trying to build a modest home, or invitingbankrupting fines and even criminal penalties. TheSacketts first sought a hearing before the EPA. Butthe EPA ignored them. Pet. App. 3. The Sackettsthen filed suit in federal court. But the DistrictCourt granted the EPA's motion to dismiss the suit.Pet. App. at C-7.

The Sacketts appealed the dismissal to the NinthCircuit. Despite the general presumption of judicialreview of administrative actions, the court heldthat the CWA precludes judicial review of pre-enforcement actions such as Compliance Orders. Pet.App. 6.

6The Sacketts argued that this would mean that the

CWA authorizes liability for violations of ComplianceOrders, even where the CWA has not been violated.The Eleventh Circuit held in Tennessee ValleyAuthority v. Whitman, 363 F. 3d 1236 (11th Cir.2003) in regard to an analogous section of the CleanAir Act (CAA) that such Compliance Orders would beunconstitutional if not subject to judicial review. Butthe Ninth Circuit read into the statute the right tochallenge the validity of a Compliance Order if andwhen the EPA chooses to enforce it, and held thatthis satisfies constitutional requirements.

The court's ruling leaves the Sacketts then withonly this choice. They can seek a permit from theEPA to discharge pollution into the navigable watersof the United States by building their home on a resi-dential lot in a residential neighborhood, as a majorindustrial enterprise would have to do for real pollu-tion, practically costing more than their property isworth and years of delay in the construction of theirown home. Or they can ignore and violate the Com-pliance Order, incurring overwhelming civil penaltiesand even quite possibly criminal liability, hoping thata court would use its equitable discretion to set thataside.

The Sacketts request a Writ of Certiorari for thisCourt to review the Ninth Circuit's ruling as uncons-titutional.

7REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTEDBECAUSE THIS CASE PRESENTSIMPORTANT QUESTIONS OF LAW WITHSUBSTANTIAL NATIONAL IMPACT.

This case is about the EPA effectively taking theplanned home of Petitioners Chantell and MichaelSackett in a manner reminiscent more of an authori-tarian government than a liberal society governed byDue Process and property rights. The Sacketts arenot the DuPont Chemical Company able to financethe application for a discharge permit, merelyto build their own home on a residential lot in aresidential neighborhood. Moreover, such homeconstruction manifestly does not involve discharge ofpollution into the navigable waters of the UnitedStates, and the Constitution requires that the Sack-etts be allowed their day in court to raise thatdefense without incurring bankrupting EPA civilpenalties, and quite possibly criminal liability, whichthey can only hope a court will equitably set aside.

That Hobson's choice violates the Fifth Amend-ment's Due Process of Law. The property rights ofhomeowners are unquestionably protected by DueProcess. Board of Regents v. Roth, 408 U.S. 564(1972); Ochoa v. Hernandez y Morales, 230 U.S. 139(1913); Davidson v. New Orleans, 96 U.S. 97 (1877);Wilkinson v. Leland, 27 U.S. 627 (1829). Due processrequires a meaningful opportunity to be heard beforedeprivation of a property interest. Mathews v.Eldridge, 424 U.S. 319 (1976); Fuentes v. Shevin, 407U.S. 67 (1972); Goldberg v. Kelly, 397 U.S. 254(1970). As this Court said in Fuentes,

8"The constitutional right to be heard is a basicaspect of the duty of government to follow a fairprocess of decisionmaking when it acts to deprivea person of possessions. . . . [T]he prohibitionagainst the deprivation of property without dueprocess of law reflects the high value, embeddedin our constitutional and political history, thatwe place on a person's right to enjoy what is his,free of governmental interference."

407 U.S. at 80-81.

The Sacketts have been undeniably denied a prop-erty interest. They purchased a residential lot in aresidential neighborhood for the purpose of building ahome. Now they have been denied the right to builda home on their property, and forced instead to main-tain it effectively as a public park, at a minimum foryears. But as the EPA has already held that takingsteps to prepare for the building of a home on theSacketts' land somehow involves discharging pollu-tion into the navigable waters of the United States,there is no reason to believe that absent judicialintervention the Sacketts will ever be free to buildtheir home.

At present, the Sacketts have no feasible recourseto get their defenses to an apparently confused EPAruling even before a court to be heard. Under presentEPA regulations, the Sacketts cannot even apply fora permit as the Ninth Circuit suggested. Once aCompliance Order has been issued, EPA regulationsprovide that "No permit application will be accepted"until the Compliance Order has been resolved. 33C.F.R. Sect. 326.3(e)(1)(ii). Moreover, even if apermit application would be allowed, that is notremotely a practical, feasible option for the Sacketts.The average application for an individual permit

9costs $271,596 and takes 788 days, or more than 2years. Rapanos v. United States, 547 U.S. 715, 721(2006) (plurality opinion).

In addition, there is no guarantee that after all ofthose costs and all of that delay, the permit to buildtheir home would be granted, or granted with feasibleconditions. If the Sacketts then have to sue after apermit denial to finally get their objections heard bya court, and the court ruled that the Sacketts wereright after all, they would have no recourse to get anyof those unbearable permit application costs back. AsJustice Scalia recognized in Thunder Basin Coal Co.v. Raich, 510 U.S. 200, 220-21 (1994)(concurring inpart and concurring in the judgment), "[C]omplyingwith a regulation later held to be invalid almostalways produces the irreparable harm of nonrecover-able compliance costs."

Alternatively, the Sacketts can ignore the EPA'sCompliance Order and seek to raise their defenseswhen the EPA moves to enforce it. That courseentails incurring EPA fines of as much as $750,000per month, $9,000,000 for a year, for failure to obeythe Compliance Order. Moreover, under the federalCWA statute, the Sacketts would have to run the riskof criminal liability as well, as Section 1319(c)(1)-(2)imposes criminal penalties for knowing violations ofthe Act. Yet, there is no guarantee that in such anenforcement action a right to raise defenses to theCompliance Order would be read into the CWA, asthe Ninth Circuit did in this case, especially whenthe plain language of the statute unambiguouslyprecludes it. Much less is there any assurance that alater court in such an enforcement action woulddisallow any fine on equitable grounds.

10These reasons are exactly why the Eleventh Circuit

in TVA v. Whitman found such a Hobson's choiceimposed by an EPA Compliance Order under aperfectly analogous provision of the CAA to be anunconstitutional violation of the Due Process Clause.The same result is mandated by the opinion of thisCourt in Thunder Basin, where the Court concludedthat lack of judicial review is unconstitutional where"the practical effect of coercive penalties for noncom-pliance is to foreclose all access to the courts," andwhere "compliance is sufficiently onerous and coer-cive penalties sufficiently potent." 510 U.S. at 216.

Indeed, over 100 years ago this Court similarlyruled in Ex Parte Young, 209 U.S. 123, 148 (1908)that requiring a party to bear "the burden of obtain-ing a judicial decision of such a question (no priorhearing having ever been given) only upon the condi-tion that if unsuccessful he must suffer imprisonmentand pay fines as provided in these acts" would beunconstitutional because it would effectively "closeup all approaches to the courts." After almost exactly100 years had passed, this Court again ruled in asimilar situation in MedImmune, Inc. v. Genentech,Inc., 549 U.S. 118, 129 (2007) that "Given this genuinethreat of enforcement, we did not require, as aprerequisite to testing the validity of the law in a suitfor injunction, that the plaintiff bet the farm, so tospeak, by taking the violative action."

Commentators have recognized the wisdom inthese opinions. Davis writes, "The absence of directreview of compliance orders effectively coerces a reci-pient to comply with the order prior to EPA enforce-ment." Andrew I. Davis, Judicial Review of Envi-ronmental Compliance Orders, 24 Envtl. L. 189, 223(1994). Similarly, Wynn writes that compliance

11orders "can coerce a regulated party into a Hobson'schoice: Complying with the order may create anenormous financial burden on a company while thecompany awaits possible EPA enforcement, whileignoring the order may subject the party to severecriminal and civil penalties." Christopher M. Wynn,Note, Facing a Hobson's Choice? The Constitutional-ity of the EPA's Administrative Compliance OrderEnforcement Scheme Under the Clean Air Act, 62Wash. & Lee L. Rev. 1879, 1920 (2005).

The Sacketts do not represent an isolated case ofthis problem. From 1980 to 2001, the EPA issued1,500 to 3,000 Compliance Orders each year acrossthe country. Wynn, supra, at 1895. So this casepresents important questions of law involving poten-tially thousands of cases of unconstitutional federalactivity across this nation denying the most funda-mental rights to Due Process of Law. Indeed, itinvolves a precedent that would affect the enforce-ment of fundamental Due Process rights in theconduct of administrative agencies across the entirefederal government, if not state and local govern-ments as well.

Moreover, besides Due Process issues, this caseinvolves Takings Clause concerns as well. The Sack-etts purchased a residential lot in a residentialneighborhood for the purpose of building a home.The arbitrary EPA Compliance Order that does notremotely seem to be grounded in any reasonablereading of the law deprives the Sacketts not only ofthat use of their property, but of any other reasonableuse as well, for an indefinite period at least. Conse-quently, this case presents an ideal test of the regula-tory Takings issue, and may involve a violation of theConstitution on these grounds as well. Richard A.

12Epstein, Takings: Private Property and the Power ofEminent Domain (Cambridge, MA: 1985).

In addition, it may represent an example of thou-sands of similar such constitutional violations acrossthe country. And it would again involve a precedentaffecting the enforcement of constitutionally pro-tected property rights in the conduct of all federaladministrative agencies, and perhaps state and localadministrative agencies as well.

Ultimately, all that Petitioners are asking for inthis case is an opportunity for their day in court topresent their defenses to an EPA enforcement actionwhich seems on its face to involve an arbitrarymisreading of the law. That not only can and shouldbe easily granted, it should easily be recognized asconstitutionally required.

Consequently, we respectfully submit that the Writof Certiorari requested by Petitioners should begranted because this case presents fundamentallyimportant questions of law with national impact.

II. CERTIORARI SHOULD BE GRANTEDBECAUSE THERE IS A CONFLICTAMONG THE CIRCUIT COURTS THATSHOULD BE RESOLVED.

There is now a direct conflict over the meaning ofthe CWA and the CAA between the ruling of theNinth Circuit below and the ruling of the EleventhCircuit in TVA v. Whitman. While this case dealtwith the CWA and TVA dealt with the CAA, therelevant language in the statutes and the issuesraised are essentially identical.

13In TVA, the EPA issued a Compliance Order

against the Tennessee Valley Authority (TVA) underthe Clean Air Act. The Eleventh Circuit recognizedthat under the statutes Compliance Orders have theforce of law independent of the statutes, and imposeliabilities for their violation apart from the statute.The language of the CAA consequently provided nobasis for the TVA to challenge the Compliance Orderand raise its defenses to it. As a result, the EleventhCircuit recognized that enforcement of the Com-pliance Order would involve an unconstitutionalinfringement of the Due Process Clause.

The Ninth Circuit recognized that the sameproblem arises in the present case in regard to theSacketts. If the Sacketts want to challenge the Com-pliance Order rather than comply with it, they wouldbear penalties for violating it which the language ofthe statute provides no opportunity to challenge. Butthe Ninth Circuit argued that the statutory languagewas not "a model of clarity," and consequently couldand should be interpreted to avoid unconstitutional-ity. It, therefore, read into the statute a right for theSacketts to raise their defenses to the ComplianceOrder after the EPA moved for enforcement.

The Eleventh Circuit addressed this statutoryinterpretation issue by arguing that "no canon ofstatutory interpretation can trump the unambiguouslanguage of a statute." TVA, 336 F. 3d at 1255.Since the statutory language was not ambiguous, theEleventh Circuit ruled, its meaning could not bestretched to avoid the unconstitutional violation ofDue Process of Law.

Consequently, we have a direct conflict over themeaning of the statutory language in the CWA andCAA between the Ninth and Eleventh Circuits. We

14can see as well the resulting problem for theSacketts, for they cannot be certain that ultimatelythe courts will read a right to raise their defensesinto the statute after they violate the ComplianceOrder, particularly given the inevitability of changingpersonnel on the courts, including this Court. Thisuncertainty is a problem, moreover, for all the objectsof EPA Compliance Orders under the CWA and CAA,which amounts to thousands of American citizens.

Therefore, we respectfully submit that the Writ ofCertiorari requested by Petitioners should be grantedto resolve this conflict between the Circuits.

CONCLUSION

For all of the foregoing reasons, amicus curiaeAmerican Civil Rights Union respectfully submitsthat this Court should grant the Writ of Certiorarirequested by Petitioners.

Respectfully submitted,

PETER J. FERRARACounsel of Record

AMERICAN CIVIL RIGHTS UNION310 Cattell StreetEaston, PA 18042610-438-5721peterferrara@msn.com

Counsel for Amicus CuriaeAmerican Civil Rights Union

CHRISTOPHER DORSEYNOTARY PUBLICDistrict of Columbia

WIRSVISPRIMINGCO1 1 IN

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No. 10-1062

CHANTELL SACKETT and MICHAEL SACKETT,Petitioners,

V.

UNITED STATESENVIRONMENTAL PROTECTION AGENCYand LISA P. JACKSON, Administrator.,

Respondents.

AFFIDAVIT OF SERVICE

I HEREBY CERTIFY that all parties required to be served, have been served on this 30th day ofMarch, 2011, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of theforegoing BRIEF OF THE AMERICAN CIVIL RIGHTS UNION AS AMICUS CURIAE INSUPPORT OF PETITIONERS by third party overnight courier, addressed as listed below:

NEAL KUMAR KATYALSOLICITOR GENERAL OF THE UNITED STATESRoom 5614Department of Justice959 Pennsylvania Avenue, N.W.Washington, DC 20530-0001202-514-2217

Counsel for Respondents

DAMIEN M. SCHIFFPACIFIC LEGAL FOUNDATION3900 Lennane DriveSuite 200Sacramento, CA 95834916-419-7111

Counsel for Petitioners

This brief replaces the original filing on 3-28-11, due to the Justice Department grantingconsent. We are withdrawing our Motion for Leave to File.

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S_worn to and SUbscribed before me this 30th day of March, 2011.

My commission expires June 14, 2013.

Christopher R. Dors

No. 10-1062

IN THE

iimprente Court of the aittiteh 'tate

CHANTELL SACKETT and MICHAEL SACKETT,Petitioners,

V.

UNITED STATESENVIRONMENTAL PROTECTION AGENCYand LISA P. JACKSON, Administrator.,

Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN CIVILRIGHTS UNION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

As required by Supreme Court Rule 33.1(h), I certify that the document contains3,337 words, excluding the parts of the document that are exempted by the SupremeCourt Rule 33.1(d).

As required by Supreme Court Rule 37.5, I certify that the Motion for Leave containedin this document contains 311 words of the 1500 word limit

I declare under penalty of perjury that the foregoing is true and correct.

Executed on March 30, 2011

Very truly yours,

U.S. Department of Justice

Office of the Solicitor General

The Solicitor General Washington, ac 20530

March 28, 2011

Peter Ferrara,. EsquireAmerican Civil Rights Union310 Candi StreetEaston, PA 18042

Re: Chantell Sackett v. Environmental Protection Agency,S. Ct. No. 10-1062

Dear Mr. Ferrara:

As requested in your letter of March 27, 2011.1 hereby consent to the filing of an amicuscuriae brief in the above-captioned case on behalf of the American Civil Rights Union.

Due to the continuing delay in receiving Incoming mail at the Department of Justice, inadditional to mailing your brief via first-class mail, we would appreciate a fax or email copy ofyour brief If this is acceptable to you please fax your brief to Emily C. Spadoni, SupervisorCase Management, Office of the Solicitor General. at (202) 514-8844, or email atSuprerneCtBriels@USDO.1.go\ . Ms. Spadoni's direct dial phone number is (202) 514-2217 or2218.

NEAL KUMAR KATYALActing Solicitor General

I

INTEREST OF THE AMICUS CURIAE'

The American Civil Rights Union is a non-partisan,non-profit, 501(c)(3), legal/educational policy organizationdedicated to defending all of our constitutional rights, notjust those that might be politically correct or fit a particularideology. It was founded in 1998 by long time policy advisorto President Reagan, and the architect of modern welfarereform, Robert B. Carleson. Carleson served as PresidentReagan's chief domestic policy advisor on federalism, andoriginated the concept of ending the federal entitlement towelfare by giving the responsibility for those programs to thestates through fmite block grants. Since its founding, theACRU has filed amicus curiae briefs on constitutional lawissues in cases nationwide.

Those setting the organization's policy as members ofthe Policy Board are former U.S. Attorney General, EdwinMeese III; former Assistant Attorney General for CivilRights, William Bradford Reynolds; former AssistantAttorney General for the Office of Legal Counsel, Charles J.Cooper; John M. Olin Distinguished Professor of Economicsat George Mason University, Walter E. Williams; formerHarvard University Professor, Dr. James Q. Wilson; formerAmbassador Curtin Winsor, Jr.; former Assistant AttorneyGeneral for Justice Programs, Richard Bender Abell andformer Ohio Secretary of State J. Kenneth Blackwell.

This case is of interest to the ACRU becausewe want to ensure that all constitutional rights are

Peter J. Ferrara authored this brief for the American Civil RightsUnion (ACRU). No counsel for either party authored the brief in wholeor in part and no one apart from the ACRU made a monetarycontribution to the preparation or submission of this brief. AllThe partieswere timely notified and have consented to the filing of this brief„—but

Formatted: Position: Horizontal: Center,Relative to: Margin, Vertical: 0 pi, Relative to:Paragraph, Wrap Around