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Supreme Court to Examine Pre-Enforcement Review of Federal Environmental Laws

12.01.2011

In Sackett v. EPA, the Supreme Court will determine whether pre-enforcement review is available for EPA administrative orders other than Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) orders.  “Pre-enforcement review” refers to the ability of a defendant to obtain judicial review of an administrative compliance order without having to wait to be sued by EPA in an enforcement action.  CERCLA has an express provision prohibiting pre-enforcement review.  The Clean Water Act, the Clean Air Act, and RCRA do not.  EPA has long made the argument that these statutes contain an “implied bar” to such challenges and most courts have agreed.  The Supreme Court has never decided the issue and has taken up the Sackett case in order to do so.

Sackett arises under Section 404 of the Clean Water Act, which prohibits the discharge of fill material into wetlands without a permit.  Chantell and Michael Sackett own an undeveloped parcel of land in Idaho.  In 2007, the Sacketts filled a portion of their property without a Section 404 Clean Water Act permit.  EPA determined that the fill violated the Clean Water Act because the parcel contained a jurisdictional wetland and issued an administrative compliance order requiring the Sacketts to remove the fill and restore the parcel to its original condition.  The Sacketts petitioned EPA for a hearing to challenge the wetland determination and, after EPA refused, filed suit in district court.  The district court ruled the Sacketts must comply with the administrative order and dismissed the Sacketts’ suit for lack of jurisdiction finding that review of an agency order was barred unless the agency first sued.  The Sacketts appealed to the Ninth Circuit, where they raised two arguments:  (1) that the Administrative Procedure Act (APA) allows pre-enforcement review of Clean Water Act compliance orders; and (2) that due process requires EPA to allow pre-enforcement review.  The Ninth Circuit also rejected the Sacketts’ arguments.

The Supreme Court granted review of the case on the following questions:  (1) may petitioners seek pre-enforcement judicial review of the administrative compliance order under the APA; and (2) if not, does petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?

Sackett has broad implications that extend beyond the Clean Water Act, as neither RCRA nor the Clean Air Act contains an explicit provision barring pre-enforcement review of administrative orders.  Only CERCLA contains an express statutory bar to pre-enforcement review.  Section 704 of the APA provides for judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.”  Section 701 of the APA denies judicial review, however, if the agency acts according to a statute that “preclude[s] judicial review.”

The Supreme Court has three options in deciding Sackett:  (1) affirm the Ninth Circuit; (2) reverse the Ninth Circuit finding that the Clean Water Act does not impliedly bar pre-enforcement review; or (3) reverse the Ninth Circuit because a lack of pre-enforcement review violates due process.

Because only CERCLA contains an express statutory bar to pre-enforcement review, rejection of the “implicit bar” or acceptance of the Sacketts’ due process argument will change the landscape for courts presented with pre-enforcement challenges to administrative orders.  Rejection of an implied bar to review will have broad implications for orders issued under RCRA, the Clean Air Act, and the Clean Water Act, especially where the courts have looked to Clean Water Act decisions as persuasive authority.

Further, a strongly-worded opinion in Sackett that accepts the due process challenge could even provide a means to challenge CERCLA’s pre-enforcement bar.  Although the Court does not have to reach that issue to decide in favor of the Sacketts, such a result could present a basis to challenge even the statutory pre-enforcement bar contained in CERCLA Section 113.  Look for updated information on the Supreme Court’s resolution of this case in future issues of the Greenebaum Environmental Letter.


To view a complete PDF of the Third/Fourth Quarter 2011 issue of the Environmental Letter, click HERE.

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