• Supreme Court to U.S. EPA: No Bullying Allowed Under Clean Water Act
  • March 27, 2012 | Author: Kevin P. Braig
  • Law Firm: Dinsmore & Shohl LLP - Columbus Office
  • A unanimous United States Supreme Court decision has sent a loud-and-clear message to the U.S. Environmental Protection Agency that it will not allow the agency to bully private citizens and corporations with unilateral administrative orders without prompt judicial review.

    On March 21, 2012, the Court decided in Sackett v. Environmental Protection Agency that the agency’s order finding the Sacketts violated the Clean Water Act constituted “final agency action” under the Administrative Procedure Act (APA). Consequently, the Court held that the federal courts have jurisdiction to immediately review such unilateral administrative orders.

    While the Supreme Court did not decide the merits of the case, Justice Scalia’s choice of words in the opinion likely indicates that at least he viewed the U.S. EPA’s tactics in using the administrative order as nothing less than playground bullying.

    “The Sacketts are interested persons feeling their way,” Scalia wrote. “They own a 2/3-acre residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but it is separated from the lake by several lots containing permanent structures. In preparation for constructing their house, the Sacketts filled in part of their lot with dirt and rock.”

    Notwithstanding that the property was physically removed from the lake, the agency issued the Sacketts a unilateral order that charged the Sacketts with violating the Clean Water Act by filling the lot. A person who fills property in violation of the Clean Water Act is subject to a civil penalty up to $37,500 per day. The U.S. EPA also took the position that the penalty would increase to $75,000 per day because the Sacketts not only allegedly violated the Act, but also clearly violated the unilateral administrative order by failing to restore the property to its pre-fill condition while they contested the alleged violation of the Act.

    In other words, the agency essentially contended that it could unilaterally double a citizen’s or corporation’s civil penalty risk exposure simply by issuing a unilateral administrative order.

    After receiving the agency’s compliance order, the Sacketts asked for a hearing, but the U.S. EPA denied the request. Without anywhere else to turn, the Sacketts filed an action in federal court and contended that the agency’s order was “arbitrary and capricious.” In response, the U.S. EPA took the position that the judicial branch had no jurisdiction to review the order prior to the agency filing a civil enforcement action.

    “But the Sacketts cannot initiate that [civil enforcement] process,” Justice Scalia logically concluded, “and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability.”

    The Court rebuked the U.S. EPA’s quixotic argument that insulating the agency’s unilateral orders from prompt judicial review was justified by the fact that such prompt review would chill the agency’s tactical use of unilateral administrative orders.

    “The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all,” Justice Scalia wrote. “And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within EPA’s jurisdiction.”