In a unanimous opinion that probably surprises no one, today the United States Supreme Court ruled in Sackett v. EPA, No. 10-1062 (Mar. 31, 2012), that Administrative Compliance Orders are final agency orders which are subject to the Administrative Procedures Act and thus can be appealed even in the absence of an enforcement action by the EPA.

We reported on the background of this case in September of last year, when the Sacketts filed their opening brief.  As we described:

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 Supreme Court’s opinion is a fairly short one for a decision that could have such far-reaching consequences.  And it can be boiled down to this:  The CWA does not expressly preclude judicial review of ACOs, nor should the courts imply one, especially when the penalties for non-compliance are so severe.

Justice Ginsburg, in a concurring opinion, agreed but wrote separately to reiterate a key point:  that nothing in the opinion should be read as a ruling allowing an appeal under the APA of the terms and conditions of the ACO.  More precisely, Justice Ginsburg agreed that the jurisdictional determination made by the EPA was subject to pre-enforcement review, but noted that the opinion is silent on whether the contents of the ACO – including, one presumes, whether there was a violation, the  remedy the EPA ordered and the penalties it assessed – can be challenged under the APA, a “question that remains open for another day and case.” 

Justice Alito also wrote a concurring opinion, although of a more substantive nature.  Specifically, he took aim directly at Congress for its failure to “provide a reasonably clear rule regarding the reach of the Clean Water Act.”  Apparently believing that the right to review was not “real relief” because in many instances it will be impractical for landowners to do so with an ACO hanging over their heads, he concluded that “only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

Now, on to what the opinion does not do.  Because the Court found that there was a right to judicial review under the APA, it never reached – and does not even refer to – the second question that the appeal had addressed:  if there is no right to pre-enforcement review, is there a violation of constitutional due process?  ACOs issued under the Clean Air Act and Unilateral Administrative Orders (UAOs) under CERCLA can be just as draconian, if not more so, and they are not subject to the APA.  DoesSackett open the door to revisit the constitutionality of these laws?  One can argue that the answer is no, because the Court took pains to distinguish but not overrule those cases in which it has previously upheld statutory schemes that preclude application of the APA.  On the other hand, the opinion does evidence concern about the harshness of such a penalty in the absence of a review process, and Justice Alito didn’t hold back when he stated that “In a nation that values due process, not to mention private property, such treatment is unthinkable.” 

Certainly, Sackett will give ammunition to those who have challenged CERCLA’s preclusion of pre-enforcement review of UAOs.  But the Supreme Court has previously denied cert in such cases, including General Electric’s petition on this issue last year.  Whether the Supreme Court will take a second look at this the next time it comes before the Court remains to be seen.

Share | Email| Print| Comments|  Topics: Administrative Procedures Act, Case Update, CERCLA, Clean Water Act, Decisions of Note, Due Process, Enforcement Action, Procedure, Real Estate, Supreme Court, Uncategorized, Wetlands