U.S. Supreme Court Permits Pre-Enforcement Judicial Review of EPA Orders

22 March 2012 Publication
Author(s): Richard G. Stoll

Legal News Alert: Environmental

In a highly anticipated and significant — but limited — decision, a unanimous U.S. Supreme Court ruled on March 21, 2012 that landowners could seek pre-enforcement judicial review of an EPA order finding their land to be “waters of the United States” under the Clean Water Act (CWA). Justice Scalia, writing for the Court with concurrences by Justices Ginsburg and Alito, held that the landowners (the Sacketts) were entitled to bring a civil action under the Administrative Procedure Act (APA) to challenge the issuance of the EPA’s order. Chantell Sackett v. Environmental Protection Agency, No. 10-1062. The Court did not decide whether the land in question was in fact “waters of the United States”; the Sacketts will now be able to litigate that in the courts below through their APA action.

The Sacketts owned three-fourths of an acre of land in Bonner County, Idaho, separated from a lake by several lots. They filled approximately half an acre of their property with fill material in preparation for building a house. The EPA issued a compliance order, finding that the property contained wetlands that were adjacent to the lake, which was a navigable water, and that their acts therefore constituted an illegal discharge of pollutants into waters of the United States without a permit. The EPA order mandated that the Sacketts take detailed and expensive steps to “restore the site.”

In summarizing his opinion from the bench, Justice Scalia quipped that the Sacketts were surprised that EPA deemed their land to be waters of the United States since they had “never seen a ship or other vessel cross their yard.” The Sacketts asked the EPA for a hearing, but were refused. They filed suit in the District Court of Idaho under the APA, but the District Court dismissed for lack of subject matter jurisdiction.

The Ninth Circuit Court of Appeals affirmed the District Court’s dismissal on the basis that pre-enforcement review of EPA compliance orders was precluded by the CWA. Adding to the significance of the new Supreme Court opinion is the fact that the Ninth Circuit opinion was fully consistent with rulings on the same issue from several U.S. circuit appeals courts.

In his opinion, Justice Scalia first reviewed the Supreme Court’s previous decisions on “navigable waters” and “waters of the United States” — the jurisdictional touchstones for the CWA — and noted that there was much understandable confusion arising from these decisions. His opinion plowed no new ground in attempting to clarify the CWA’s jurisdictional reach, however, and considered only whether the compliance order could be challenged in court.

At the outset, the Court found that the compliance order was “final agency action” under the APA. Then, rejecting multiple arguments by the EPA seeking to protect CWA compliance orders from judicial review, the Court concluded that “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 the EPA’s jurisdiction.”

Justice Ginsburg’s concurrence notes that while the Court’s opinion allows immediate litigation challenging EPA’s authority to regulate the Sacketts’ land as waters of the United States, the Court’s opinion did not take up the question of whether the Sacketts also could challenge the terms and conditions of the compliance order. She stated that this “question remains open for another day and case.” Justice Scalia’s opinion for the Court does not dispute Justice Ginsburg’s characterization of the Court’s holding.

In his interesting concurrence, Justice Alito returned to the navigable waters question. He noted that until the March 21, 2012 decision, which provided “a modest amount of relief,” landowners subject to orders similar to the Sacketts’ were at the mercy of the EPA and had no access to judicial review until they were sued by EPA, which itself was under no time pressure to act. In the meantime, EPA fines of up to $75,000-per-day could continue to accrue. Justice Alito concludes that for real relief, Congress must provide “a reasonably clear rule” regarding the scope of the CWA by defining “waters of the United States.” He wrote that neither Congress, nor the EPA, nor any of three previous Supreme Court decisions have resolved this “critical ambiguity,” and “only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

The new Supreme Court opinion signals a significant, albeit limited, change in environmental law. Beyond cracking open the pre-enforcement judicial door, however, the scope of its reach will undoubtedly encounter conflicting scholarly and judicial analysis in the months ahead.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this Alert or would like to discuss the topic further, please contact your Foley attorney or:

Richard G. Stoll
Washington, D.C.

Gregory L. Berlowitz
Chicago, Illinois


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