U.S. Supreme Court holds party subject to EPA compliance order under the Clean Water Act may seek judicial review to challenge the order before complying.

Sackett v. EPA

March 21, 2012

U.S. Supreme Court

No. 10-1062; 2012 DJDAR 3737

Petitioners owned property in Idaho separated by several built properties from a lake. They filled part of their lot with fill and dirt in anticipation of building their home. The US EPA issued a compliance order, claiming they had discharged a pollutant into wetlands adjacent to navigable waters, thus violating the Clean Water Act (CWA). The EPA ordered petitioners to restore their property or face high daily penalties.

Petitioners claimed they were not subject to the CWA and sought a hearing from the EPA which the EPA refused. Petitioners then filed an action in federal court, claiming the order was arbitrary and capricious and seeking declaratory and injunctive relief. The district court and Ninth Circuit both ruled against petitioners, holding the Administrative Procedure Act (APA) only allows review of a final decision, thus precluding pre-enforcement judicial review of compliance orders. Under this scenario, petitioners would have to wait for the EPA to sue them before they could obtain judicial review.

The US Supreme Court (Justice Scalia writing the majority opinion) reversed, holding the EPA decision marked the consummation of the agency decision-making process and that the findings in the order were not subject to further agency review. The Court seemed intolerant of the EPA “strong-arming” regulated parties into voluntary compliance without an opportunity for judicial review. Thus, petitioners could challenge the EPA order before complying with the order. The Court did not address whether petitioners could also challenge the terms of the order, as noted by the concurring opinion of Justice Ginsburg. (There were two concurring votes and no dissents.)

Prepared by John Reaves

This entry was posted in Appellate Case Summaries. Bookmark the permalink.

Comments are closed.