Mar 21, 2012

U.S. Supreme Court Issues Decision on Pre-Enforcement Judicial Review of EPA Compliance Orders

On March 21, 2012, the U.S. Supreme Court issued an unanimous decision in Sackett v. EPA, a closely watched case addressing the enforcement authority of the U.S. EPA under § 309 of the federal Clean Water Act (CWA). Without addressing the underlying substantive issue regarding the jurisdictional scope of the CWA, the Supreme Court held that a defendant is entitled to obtain judicial review of an EPA administrative compliance order prior to EPA taking any enforcement action regarding the order.

In Sackett, two Idaho landowners received an administrative compliance order from EPA in which EPA (1) concluded that the Sacketts had violated the CWA by discharging fill material into jurisdictional wetlands on the property, and (2) ordered the Sacketts to immediately undertaken restoration activities in accordance with an EPA-created Restoration Work Plan and provide EPA with access to the property and all records related to conditions at the property.

After EPA rejected their request for a hearing, but prior to EPA bringing any legal action to enforce the terms of the compliance order, the Sacketts brought suit in federal court under the Administrative Procedure Act (APA) seeking “pre-enforcement” judicial review of whether their property contained wetlands within the jurisdiction of the CWA and thus was subject to EPA’s regulatory authority.

In reversing two lower court decisions that concluded that the CWA precludes pre-enforcement judicial review of administrative compliance orders, the Supreme Court concluded that EPA’s compliance order constituted “final agency action” under the APA and thus was subject to judicial challenge because (1) the “findings and conclusions” by EPA in the order were not subject to further agency review and thus marked the “consummation” of EPA’s decision-making process, (2) the order subjected the Sacketts to up to $75,000 a day in civil penalties if the Sacketts did not comply with the order and EPA initiated judicial enforcement proceedings, and (3) the order resulted in a “severe” limitation of the Sacketts’ ability to obtain a permit for their fill activities from the U.S. Army Corps of Engineers.

It is anticipated that the Supreme Court’s decision in Sackett will have a significant impact on the process by which EPA seeks to enforce the CWA and other federal environmental laws.

For more information, please contact Andy Thompson.


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