This week the U.S. Supreme Court heard argument in a case that has the potential to change the way federal environmental statutes are enforced and how recipients of EPA administrative compliance orders respond to those orders.
Sackett v. EPA involves a couple who own a .63 acre undeveloped parcel near Priest Lake in Idaho. In 2007, the Sacketts cleared and filled a portion of their property without a Clean Water Act (CWA) permit. EPA determined that the fill violated the CWA because the parcel contained a jurisdictional wetland and issued an administrative compliance order directing the Sacketts to remove the fill and restore the parcel to its original condition. The order also threatened financial penalties if the Sacketts failed to comply.
The Sacketts sought pre-enforcement judicial review of the compliance order under the Federal Administrative Procedure Act, but were denied by both the District Court and the 9th Circuit on the grounds that pre-enforcement review is not available under the CWA. Notably, neither the CWA nor any other major federal environmental statute except CERCLA contains an explicit prohibition on pre-enforcement review; most courts have, however, supported EPA’s view that these statutes contain an “implied bar” to such challenges. The Sacketts sought certiorari review by the Supreme Court.
EPA takes the position that although it can issue compliance orders directing violators to get a permit and remedy any damage they caused, to enforce an order, the agency has to sue in federal court; it doesn't have the authority to take action against a violator on its own. Thus, according to EPA, because the order issued to the Sacketts did not itself seek enforcement and was not a final judgment against the couple, at this point in the dispute, there is nothing for a court to review.
The Sacketts – who, despite some conflicting evidence, maintain that they didn't know there were wetlands on their property - argue that lack of judicial review of the compliance order violated their due process rights. During the argument, several justices appeared sympathetic to the Sacketts, with Justice Alito observing that, “if you related the facts of this case . . . to an ordinary homeowner, . . . most ordinary homeowners would say this kind of thing can’t happen in the United States.”
EPA has noted that it views compliance orders as a warning, and often uses them as a tool that allows the agency to press landowners to negotiate regarding mitigation of environmental harms. EPA also contends that compliance orders actually help regulated parties comply with the CWA before risking potential civil liability in an enforcement action. Supporters of the Sacketts, who include developers, corporations, utilities, libertarians and conservative members of Congress, characterize compliance orders as heavy-handed enforcement by EPA.
Sackett potentially has broad implications for enforcement actions and related litigation under federal environmental statutes. If the Supreme Court holds that the Sacketts are entitled to pre-enforcement judicial review, the case will limit the usefulness of compliance orders as a streamlined means of enforcing environmental laws, as resolution of challenges in court inevitably will be time consuming. On a related note, environmental groups have raised the prospect that pre-enforcement review could undermine the EPA’s ability to quickly address environmental emergencies. Down the road, it will be interesting to see whether a decision against EPA in this case prompts Congress to clarify its intent with respect to compliance orders. If it's the case that Congress did intend to bar pre-enforcement review under the CWA and other environmental statutes, in the event of an EPA loss in Sackett, Congress could (depending on the political winds) act to amend these statutes to mirror CERCLA’s express prohibition on pre-enforcement review.
The Supreme Court's decision is expected later this year.