Supreme Court Allows Pre-Enforcement Review of EPA Clean Water Act Orders

In the March 21, 2012 decision of Sackett v. Environmental Protection Agency (Docket No. 10-1062), the Supreme Court unanimously ruled that a landowner may bring a civil action against the EPA to challenge a compliance order, even if the EPA has not yet brought an action to enforce that order. In Sackett, an Idaho couple had begun clearing and filling a plot of land. The EPA issued a compliance order against the Sacketts, claiming that their plot was a protected wetland, and that filling the plot would be illegal under the Clean Water Act (“CWA”). The order required the Sacketts to remove the fill and restore the land, or else face civil penalties. After failing to obtain an hearing from the EPA, the Sacketts filed suit under the Administrative Procedure Act to contest the Clean Water Act jurisdiction over their property. The District Court and The Ninth Circuit both ruled that the Sacketts could not challenge the order, because the EPA had not yet filed a lawsuit to enforce the order and impose penalties.

The Supreme Court disagreed, and in a unanimous decision, declared that since compliance orders constitute “final agency action” for the purposes of the Administrative Procedure Act, such orders may be challenged under that Act, as plaintiffs had no other adequate remedy at law. Furthermore, the Supreme Court strongly rejected EPA’s interpretation that the CWA precluded such pre-enforcement review, finding “no reason to think that the CWA was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”

EPA issues similar enforcement orders under other statutes with the understanding that these orders are not subject to pre-enforcement judicial review. Indeed, the lack of pre-enforcement judicial review is one of the more significant arrows in EPA’s compliance quiver, especially given the threat of significant penalties for failing to comply with an order. The Supreme Court’s decision is limited to the Clean Water Act, and the rationale likely would not extend to CERCLA, since CERCLA expressly prohibits pre-enforcement review, and courts have rejected similar challenges to CERCLA orders. However, it does raise an interesting question regarding orders issued under RCRA.

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