The Clean Water Act turns 40 this year, but despite its age, its implementation continues to raise controversial issues. Today, the United States Supreme Court heard oral arguments in an important wetlands case, Sackett v. EPA. The issue in the case is two-fold: 1. May petitioners seek pre-enforcement judicial review of an administrative compliance order pursuant to the Administrative Procedure Act, 5 U.S.C. § 704; and 2. If not, does petitioner’s inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?
The facts, as summarized by Jonathan H. Adler at the Volokh Conspiracy:
The Sacketts own a lot in a residential subdivision upon which they planned to build a home. After they graded the lot, they were received an Administrative Compliance Order (ACO) from the EPA alleging they had violated the Clean Water Act by filling a wetland without a federal permit and ordering them to commence costly restoration, under threat of substantial penalties. The Sackett’s sought to challenge the ACO, believing that their land does not constitute jurisdictional wetlands subject to federal regulation, but the Clean Water Act does not provide any basis for doing so absent waiting for the EPA to commence a civil action. According to the EPA, what the Sacketts could have done is applied for the permit they believe they do not need, and if their permit application was denied, then challenge the EPA’s jurisdictional determination in federal court. But this is hardly an appealing option, particularly given the substantial costs the permitting process entails. So the Sacketts filed suit in federal court, but the district court and U.S. Court of Appeals for the Ninth Circuit agreed with the EPA that the ACO was not subject to a pre-enforcement challenge.
The outcome of this case is important because Administrative Compliance Orders are relatively common. The EPA uses them to persuade landowners to negotiate since the penalty imposed on the landowner for not complying can be as high as $75,000 a day.
The briefs in the case and other additional information is available on SCOTUSblog. A decision is expected this summer.
This post was authored by Emily Kelchen, a member of the Madison Chapter steering committee, and was originally published on the Great Lakes Legal Foundation Regulatory Watch Blog.