Supreme Court Says EPA Administrative Orders Subject to Pre-Enforcement Review

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By Robert C. Cook  

Clean Water Act administrative orders are final agency actions subject to immediate pre-enforcement judicial review under the Administrative Procedure Act, the U.S. Supreme Court held in a unanimous opinion March 21 (Sackett v. EPA, U.S., No. 10-1062, 3/21/12).

The court ruled against the Environmental Protection Agency in a lawsuit brought by Idaho property owners who argued they were entitled to judicial review of a wetlands compliance order before EPA had begun an enforcement action in federal court.

Justice Antonin Scalia delivered the opinion, which held that Chantell and Michael Sackett were wrongly denied the opportunity to challenge EPA's order to halt construction on a home near Priest Lake in northern Idaho near the Canadian border because it was located on a site that EPA said was a wetland.

The decision reverses a 2010 opinion by the U.S. Court of Appeals for the Ninth Circuit.

Writing for the court, Scalia said that the Sacketts brought suit under the Administrative Procedure Act, which provides for judicial review of final agency action for which there is no other adequate remedy.

“Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise,” Scalia wrote.

‘Great Day for Regulated Public.'

Damien Schiff, an attorney with the Pacific Legal Foundation in Sacramento, Calif., who represents the Sacketts, told BNA March 21 that “this is a great day for the regulated public.”

“EPA is not above the law,” he said.

Schiff summarized the Scalia opinion by saying that it found the hallmarks of final agency action. The opinion found legal impact, the end of an agency decision-making process, and the only remaining available process to be a lawsuit.

“Congress did not intend to preclude pre-enforcement review,” Schiff said.

EPA issued a compliance order against the Sacketts in November 2007, alleging the parcel they were building on was a wetland and that they had violated the Clean Water Act by filling it in.

The agency said compliance orders are unenforceable until the agency seeks civil enforcement action in a federal district court, which it did not do in the Sackett case. EPA typically issues compliance orders after notifying the party that it has information of potential violations. The agency uses the orders as tools to garner compliance or initiate negotiations to force compliance.

The order directed the Sacketts to stop construction and restore the lot to its pre-construction condition. For every day of delay the Sacketts faced potentially additional fines of $75,000, EPA said.

The Sacketts then sued EPA, but the U.S. District Court for the District of Idaho granted the government's motion to dismiss the lawsuit due to lack of subject matter jurisdiction.

The Ninth Circuit affirmed the dismissal, holding that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders and that such preclusion does not violate due process (Sackett v. EPA, 622 F.3d 1139, 71 ERC 2036 (9th Cir. 2010)).

A ‘More Deliberative' EPA

Kevin Holewinski, a partner at Jones Day who heads the firm's environmental practice, told BNA the Supreme Court's ruling will cause EPA to be “far more deliberative” about issuing compliance orders.

Otherwise, Holewinski said, “EPA will be at the receiving end of lawsuits under the Administrative Procedure Act if they act in a manner that calls into question whether the Clean Water Act applies to a piece of property.”

Other attorneys agreed with Holewinski (see related story).

Justice Ruth Bader Ginsburg and Samuel A. Alito filed concurring opinions in the case.

Ginsburg stressed that although the holding of the court was that the Sacketts may immediately litigate their jurisdictional challenge in federal court, the opinion leaves “for another day and case” the issue of whether they may sue at the pre-enforcement stage to contest the terms and conditions of the compliance order.

In his concurrence, Alito was critical of Congress for not providing enough clarity on judicial review. “The reach of the Clean Water Act is notoriously unclear. … Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”

Allowing aggrieved property owners to sue under the Administrative Procedure Act “is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem,” Alilto said.

Day in Court Needed

As for the Sacketts, Schiff said the victory was a necessary step, but they still have to go back to the district court to have their “day in court.”

In the district court they will have to establish that EPA does not have authority over the Sackett property, so the EPA order is “null and void,” and they can build their house.

Schiff called this a victory for property owners in general, who can now fight back against EPA when EPA exceeds its authority.

It is a victory for landowners throughout this country, Schiff said. “It gives the regulated public a fair shake.”

The Justice Department did not immediately respond to a request for comment.

EPA responded by stating it “will of course fully comply with the Supreme Court's decision, which the agency is still reviewing, as we work to protect clean water for our families and future generations by using the tools provided by Congress to enforce the Clean Water Act.”

The Ninth Circuit decision was issued Sept. 17, 2010. The appellate court said in its opinion that the “goal of enabling swift corrective action would be defeated by permitting immediate judicial review of compliance orders.”

The Ninth Circuit wrote, “We do not work from a blank slate. Every circuit that has confronted this issue has held that the CWA impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court.”

Water Act Jurisdiction Not at Issue

Although the case involved wetlands, the issue considered by the Supreme Court was not the larger jurisdictional question addressed by the court in Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006).

Instead the facts presented to the court on pre-enforcement review concerned what might be called a prologue to the Rapanos issue.

For More Information

The U.S. Supreme Court opinion in Sackett v. EPA, is available at


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