Sackett v. Environmental Protection Agency
Court rejects arguments that: (1) administrative compliance orders issued by EPA under the Clean Water Act are subject to pre-enforcement judicial review, and (2) the absence of pre-enforcement review violates property owners’ constitutional right to procedural due process.
Status: Pending before the U.S. Supreme Court (No. 10-1062): oral argument held on Jan. 9, 2012; decision expected by June 2012.
Discussion & Analysis: In 2007, Chantell and Michael Sackett purchased an undeveloped lot in a residential zone near Priest Lake in Idaho. In preparation for building a home, the Sacketts filled in one-half acre of wetlands on their property with dirt and rocks.
The Clean Water Act (CWA) prohibits the unpermitted discharge of pollutants into the “waters of the United States,” which can include wetlands. When pollutants are discharged into jurisdictional wetlands without a permit, EPA has several enforcement options. First, EPA can assess an administrative penalty. Second, EPA can bring a civil enforcement action in federal court. Third, EPA can issue an administrative compliance order, which is a document describing the violation and setting forth the time for compliance. The order may be issued “on the basis of any information available.” If the alleged violator fails to comply, EPA may bring suit to enforce the order; administrative compliance orders are not self-enforcing. A federal judge may then assess civil penalties based on violations of both the order and the CWA.
EPA issued a compliance order to the Sacketts, alleging that they had violated the CWA by dumping fill into jurisdictional wetlands without a permit and directing them to restore the land to its original condition. Additionally, the order encouraged the Sacketts to contact EPA regarding the allegations and warned the Sacketts that failure to comply with the order could subject them to civil or administrative penalties. The Sacketts requested a hearing from EPA to challenge the jurisdictional determination. The agency declined, and the Sacketts sued. The lower court dismissed the case for lack of jurisdiction, finding that the CWA does not authorize courts to review a compliance order until EPA has sought to enforce it. On appeal, the Ninth Circuit affirmed.
The Ninth Circuit first determined that the CWA precludes pre-enforcement review of administrative compliance orders. The court noted that Congress had given EPA a choice under the CWA to issue a compliance order as an alternative to bringing a civil enforcement action. Allowing pre-enforcement judicial review of compliance orders would eliminate this choice, because the subject of the order could compel EPA to litigate. Additionally, pre-enforcement review would conflict with the CWA’s goal of ensuring quick corrective action, and hinder EPA’s ability to use administrative orders as a means of promptly addressing environmental problems without necessarily resorting to litigation.
Next, the court concluded that the absence of pre-enforcement review of CWA compliance orders did not violate the Sacketts’ due process rights. The Sacketts had argued that the inability to obtain judicial review until the EPA decided to bring an enforcement action effectively foreclosed their access to the courts. In essence, the Sacketts argued, they had no choice but to comply with an order they believed to be legally unjustified, as the only alternative was to risk severe penalties that continued to accrue for each day of noncompliance. The court noted, however, that only a court can only impose civil penalties, and totals are subject to a court’s discretion, exercised after a full opportunity for the parties to be heard and in light of the circumstances of the case. Additionally, the court pointed out that the CWA offers a clear means by which the Sacketts could have obtained judicial review without the risk of accruing penalties: if they had applied for a permit, either before or after issuance of the compliance order, they could have immediately challenged its denial (or, if granted, its terms) in court, and presented their jurisdictional challenge.
This case is now before the U.S. Supreme Court. If the Court rules against EPA, the decision could broadly impact the ability of federal agencies to enforce many environmental laws, including those that address water pollution, air pollution, and hazardous waste remediation. Each year, EPA and state environmental agencies issue many compliance orders. Administrative enforcement mechanisms like compliance orders allow agencies to address environmental problems swiftly. The use of compliance orders also encourages regulated parties to communicate and negotiate with agencies, promoting an iterative and flexible administrative process—and a means of averting costly and time-consuming litigation. Additionally, these orders allow agencies to seek voluntary compliance from a violator or correct its own mistakes before expending considerable funds and staff time on litigation.
A ruling by the Supreme Court that pre-enforcement review of CWA administrative compliance orders is available through the Administrative Procedure Act would likely result in more and earlier lawsuits over these orders, which could in turn substantially undermine the efficiency and effectiveness of environmental programs. Recognizing that an administrative compliance order could quickly generate a lawsuit, EPA could be discouraged from issuing them, even in situations where environmental damage otherwise could be promptly addressed outside of court. Such a ruling also could have implications for statutes such as the Clean Air Act, which features a similar enforcement scheme to that of the CWA. Finally, should the Supreme Court determine that the unavailability of pre-enforcement review under the CWA violates the Sacketts’ right to procedural due process, this could mean that pre-enforcement review of administrative orders is constitutionally required across all environmental laws.
Key Opinion: Sackett v. U.S. Environmental Protection Agency, 622 F.3d 1139 (9th Cir. 2010).
See Also: General Electric Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010), cert. denied, 79 U.S.L.W. 3685 (U.S. June 6, 2011) (rejecting the argument that EPA’s issuance of unilateral administrative orders under CERCLA deprives company of its constitutional right to procedural due process).
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