|March 23, 2012|
Previously published on March 22, 2012
On March 21, 2012, the United States Supreme Court issued a unanimous decision in the much-publicized case of Sackett v. EPA (No. 10-1062), less than three months after oral argument, holding that the Sacketts were not precluded from judicially challenging EPA’s issuance of an administrative compliance order. The order sanctioned the Sacketts for having violated the Clean Water Act (the Act) by placing fill material on their property without having first obtained a permit from the Corps of Engineers under Section 404 of the Act. Although the Court focused on the precise language of the Act, the Court’s decision raises potential questions with a number of EPA programs that prohibit pre-enforcement review of agency orders.
In this case, the Sacketts placed dirt and rock on their lot, in preparing to build their house on it. The lot was separated by several homes from a lake. Several months later, EPA issued a compliance order declaring that their property constituted wetlands to which the permitting requirements of Section 404 applied. It ordered the Sacketts to, among other things, restore their property and subjected them to a doubled penalty - of $75,000 - for failure to comply. The Sacketts requested and were denied a hearing. They then filed suit, based on Section 7 of the Administrative Procedure Act (APA), asserting that there was no other adequate remedy in court and claiming that the agency’s action was arbitrary and capricious and denied them due process.
The district court in Idaho and, on appeal, the 9th Circuit, agreed with the government, that pre-enforcement judicial review was precluded under the Act. In the court’s opinion, Justice Scalia noted the ongoing controversy and lack of guidance regarding the scope of “navigable waters” under the Act, based on a number of holdings, including most recently, Rapanos v. US, 547 U.S. 715 (2006), a point on which Justice Alito focused in his concurring opinion, noting: “The reach of the Clean Water Act is notoriously unclear.” Justice Scalia then went on to conclude, on the issue before the Court, that the compliance order was final agency action, because EPA had determined rights and obligations, requiring the Sacketts to restore their property and subjecting them to double penalties for noncompliance. Justice Scalia concluded further that, though the Sacketts were invited to engage in informal discussions, the agency action was nonetheless final and not subject to further agency review - especially because the agency denied their request for a hearing. The government did not contend that other remedies were available so as to foreclose review, but argued instead that the Act precluded judicial review.
The opinion stated that nothing in the Act expressly precluded judicial review and noted that the APA created a presumption favoring judicial review. The Court found EPA’s arguments inadequate to rebut this presumption.
The Court concluded that the Sacketts’ compliance order was final agency action for which there was no adequate remedy other than APA review and that the Act did not preclude that review. Because the Court’s opinion focused on the language of the Act and the fact there was no express prohibition, it is not clear whether and to what extent it may affect challenges to orders issued under other environmental statutes where EPA also has maintained there is no pre-enforcement review of administrative compliance orders.
The effect of Sackett on the availability of pre-enforcement review under other environmental statutes will depend, in part, on whether those statutes contain express prohibitions on it. For example, the Resource Conservation and Recovery Act, like the Clean Water Act, does not contain an express prohibition on pre-enforcement review. Presumably, therefore, the Sacketts’ Court’s analysis will be especially material to challenges to that statute, the inquiry initially being whether the government has made an adequate showing to rebut the APA’s presumption favoring judicial review.
On the other hand, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), in section 113(h), does contain an express prohibition, which bars pre-enforcement review of unilateral administrative orders to conduct a response action at a facility, issued under section 106. The Clean Air Act, too, though it does not contain an express prohibition, does limit judicial review. For these statutes, courts may need to reach the due process issue. Although the Supreme Court previously denied a petition for certiorari in a due process challenge by General Electric under CERCLA, it is possible that as a result of Sackett, the Court might be more willing to entertain such a challenge, depending on the facts of the case before it.