Commentary: Legal cases seek due process under Clean Water Act

Issue Date: January 24, 2018
By Tony Francois
Tony Francois
Landowners can face multi-million-dollar fines for alleged violations of the federal Clean Water Act, which allows government agencies to punish violators unilaterally. Lawsuits seek to give landowners due process in such circumstances, allowing them the same rights they would have to challenge a traffic ticket or other government action.
Photo/Ching Lee

Due process is a principle of government that protects individual liberties and constrains how the executive conducts itself when enforcing the law. But what exactly is due process? Why is it important? What is it supposed to prevent government agencies from doing to us?

Farmers know the answers to these questions perhaps better than most, because due process protections first arose centuries ago in England, when farmland was still the most universal type of property and the only source of income and subsistence for most people.

Land was also the key to control of the kingdom; the king could appoint the local nobles and decide which lands they controlled. The English monarchy would frequently abuse this power by reassigning lands to nobles who were more loyal.

Because this arbitrary abuse could lead to rebellion, the king and his ministers would frequently use the pretext of accusing landholders of crimes, with confiscation of land as the punishment. All too often, the outcome of these accusations was rigged against the landowner.

The English nobles responded to this by insisting on a fundamental protection: due process of law. The essence of this principle is that the government may not make secret decisions to take a person's liberty or property. This reduces the risk of factual mistakes about a person's guilt, by ensuring that facts are determined in the light of day and with the property owner's participation. This guards against twin evils: incompetence and corruption. Sometimes, the government just screws up when it thinks you are guilty. Other times, it knows you are innocent, but abuses its power for improper reasons.

Over time, this principle evolved to protect everybody, not just the nobility, and to include specific measures enumerated in the Bill of Rights to the United States Constitution. Under the Fifth Amendment, "no person shall be deprived of life, liberty, or property without due process of law."

The Supreme Court has interpreted this phrase to ensure that anyone accused of a violation of the law, before being imprisoned or fined or otherwise losing the use of their property, is entitled to a hearing, with reasonable notice and a meaningful opportunity to participate.

Due process requires six things in particular: a hearing before the deprivation; a neutral decision maker; a decision based on the evidence; disclosure of the government's evidence against you; the opportunity to both cross examine the government's evidence and to present your own evidence; and the opportunity to be represented by counsel.

These protections are well illustrated by the mundane example of a traffic ticket, which starts with a police officer pulling you over for speeding. In some countries, the whole "transaction" may start and end with the officer's accusation, and a "fine" paid directly to the officer. Simple, perhaps, but endlessly susceptible to mistakes and corrupt enforcement.

Due process ensures that it works differently: The officer gives you a ticket, which is essentially an accusation. It notifies you when you may appear in court if you wish to contest the fine. On that date, you go to court, and appear before the judge. If you contest, the officer who wrote the ticket must appear and testify. You may cross examine the officer, and then put on your own testimony and evidence if you wish. The fine is not paid to the judge, and the judge is independent of the officer. He or she must make a decision based on the evidence introduced in the hearing. It is uncommon, but if you want a lawyer to argue for you in traffic court, you can do that.

This is so much a part of how we expect things to be done that we probably never stop to consider that this is a lot of process to fine someone for speeding. But we would immediately agree that we are entitled to this process if we want it.

But let's try another example: Do we get due process from federal government environmental agencies? The short answer is no. You get more due process for a $50 traffic ticket than you do for a multi-million-dollar Clean Water Act fine from the Environmental Protection Agency.

What is the EPA process for issuing multi-million-dollar notices of violation of the Clean Water Act? Here is the entire process, set forth in the Clean Water Act: "Whenever, on the basis of any information available to him, the Administrator finds that any person has violated" the CWA.

No process, no notice, no hearing, no opportunity to even know the evidence the government relies on against you, much less rebut it or submit any of your own. The Clean Water Act authorizes the EPA administrator to make a secret decision that you have violated the Clean Water Act, to order you not to use your property, to order you to perform restoration on your property, and to threaten millions of dollars in fines if you do not comply.

What is to be done about this?

Pacific Legal Foundation is actively litigating environmental enforcement cases with a view to re-establishing due process protections to agency enforcement practice. We are optimistic the courts will ultimately do away with secret government decision making in environmental enforcement.

(Tony Francois is senior attorney for the Pacific Legal Foundation in Sacramento. He may be contacted at

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.