On September 23, the Petitioners filed their opening brief  in the case of Sackett v. Environmental Protection Agency (10-1062), one of two environmental cases on the United States Supreme Court’s docket for the upcoming term. 

As with most cases, Sackett began as a rather routine matter when the EPA issued a Compliance Order (the “Order”) to the Sacketts, finding that they had, in the early stages of construction of their home, filled in a wetland without the necessary permits in violation of section 404 of the Clean Water Act (“CWA”).  The Order required the Sacketts to, among other things, remove the fill, restore the wetland vegetation on the property, and monitor regrowth for several years.  The Order also provided that any failure to comply with the Order could result in severe financial penalties.  When the Sacketts sought to challenge the Order on the ground that their property did not contain any regulated wetlands, they were denied a hearing by EPA, who relied on the fact that the CWA does not provide for pre-enforcement judicial review of compliance orders.   The Sacketts then filed a lawsuit against EPA contending that they were denied their constitutional right to due process.  The District Court dismissed the case, holding that because EPA had not yet filed an enforcement action, the complaint was premature.

The Ninth Circuit affirmed the District Court’s dismissal.  Key to the decision was the Court’s interpretation of the CWA’s language allowing the EPA to issue compliance orders based upon “any information available.”   The Sacketts contended that this would allow a Court, in the context of an enforcement action, to find them in violation of the Order (and hence liable for penalties) even if the “available information” which resulted in the issuance of the Order was erroneous.  But the Ninth Circuit disagreed, suggesting that the CWA should not be read in such a literal manner and that application of long-standing rules of construction allow for an interpretation of the CWA that would prevent the imposition of fines if a court, in the context of a legal challenge to an enforcement action, found no underlying violation.  

The challenge raised by the Petitioners in Sackett, while one of first impression for the Ninth Circuit, is not a novel one, argued the  Justice Department in opposing review of the case.  On the contrary, the Justice Department contended that every federal Circuit Court that had ruled on the issue had similarly declined jurisdiction over pre-enforcement lawsuits.  Still, the Supreme Court agreed to hear the case on two questions: whether the Petitioners could seek pre-enforcement review in court of the Order under the Administrative Procedures Act, and, if they could not, whether that would violate their right to constitutional due process. 

The Respondents’ Brief is due to be filed in late November, and oral argument is expected in or after January, 2012. 

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