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June 06, 2016
David Sunding’s Research Cited in Supreme Court’s Decision in Army Corps of Engineers v. Hawkes

Brattle Principal David Sunding’s research was cited in a United States Supreme Court decision on Army Corps of Engineers v. Hawkes, issued on May 31, 2016. In this decision, the justices unanimously ruled in Hawkes’ favor, mandating that property owners who wish to develop their land can seek an immediate judicial review of an U.S. Army Corps of Engineers determination that their property contains waters of the United States, which makes it subject to federal regulation under the Clean Water Act (CWA).

On March 30, 2016, Hawkes Co. argued that the process of obtaining a discharge permit under the CWA is unreasonably time-consuming and expensive. The company began the permitting process in 2010. After receiving an Approved Jurisdictional Determination (JD) that stated that their newly-purchased land was subject to federal regulation, Hawkes chose to administratively appeal it. This appeal led to the 2013 lawsuit filed against the U.S. Army Corps of Engineers, which alleged that the JD violated the Administrative Procedure Act (APA) since it was arbitrary and capricious. A district court dismissed the initial suit for lack of a final agency determination, but the Eighth Circuit reversed.

Writing for the Supreme Court, Chief Justice John Roberts used research conducted by Professor Sunding and a Berkeley colleague on the economics of environmental regulation to highlight the excessive cost and time required to undergo the permitting process. Leveraging Professor Sunding’s work, Chief Justice Roberts wrote that, “for a specialized ‘individual’ permit of the sort at issue in this case…the average applicant ‘spends 788 days and $271,596 in completing the process,’ without counting the costs of mitigation or design changes.”

To read more about the cost and time implications of this case, read Professor Sunding’s research on the Berkeley website.