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January 4‚ 2012
Sackett v. EPA: Does the Constitution Mandate the
Ability to Challenge an EPA Order Pre-Enforcement?
By Jennifer Sulla
The United States Supreme Court may soon decide a question of
due process under the Clean Water Act (CWA) which has broader implications
for the way EPA enforces the nation’s environmental laws. The question is
whether the Fourteenth Amendment requires that a landowner be able to
challenge an EPA compliance order in court before EPA seeks to enforce that
order. Oral argument in Sackett v. EPA is scheduled for January 9
and at last count 14 amici briefs have been filed and 10 states have
weighed in. Because other environmental statutes, such as the federal
Superfund statute, also bar pre-enforcement review of EPA orders, the
Supreme Court’s decision could materially affect EPA’s future enforcement
strategies.
Chantell and Michael Sackett own a .63-acre undeveloped lot
in Idaho, which they partly filled in with dirt and rock to build a house
on the lot. EPA issued a compliance order alleging that the property is a
wetland subject to the CWA and that the Sacketts violated the CWA by
filling their property without first obtaining a permit. EPA ordered the
Sacketts to remove the fill and restore the property to its original
condition, on pain of up to $32,500 in penalties per day per violation.1
The Sacketts unsuccessfully sought a hearing with EPA to
challenge the order. They then sued in federal district court. The district
court dismissed the Sacketts’ lawsuit on the grounds that the CWA bars
judicial review of a compliance order before EPA brings an enforcement
action in federal court. The Sacketts appealed to the Ninth Circuit.
The Ninth Circuit affirmed the district court’s dismissal
holding that the CWA impliedly bars pre-enforcement judicial review of
compliance orders.2 The
court reasoned that authorizing pre-enforcement judicial review would
deprive EPA of the statutorily-allowed discretion to either bring a civil
enforcement action or issue a compliance order and would also frustrate the
statutory intent to allow EPA to remedy environmental problems quickly.
The Ninth Circuit concluded that the potential consequences
of violating a compliance order do not “foreclose all access to the courts”
or create a “constitutionally intolerable choice.” According to the court,
the Sacketts could have chosen to seek a permit, the denial of which would
have been immediately appealable to the district court under the
Administrative Procedures Act. In addition, any civil penalties for
violating the compliance order would ultimately be determined by a court,
at which time the Sacketts would have a “full and fair opportunity” to
present their arguments.
Other environmental laws such as the Clean Air Act and
CERCLA, the federal Superfund statute, also bar pre-enforcement review of
EPA orders. The Supreme Court’s decision in Sackett, and whether it
addresses the broad constitutional due process arguments raised by the
Sacketts, could impact EPA’s use of one of the most potent tools in its
enforcement arsenal.
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1 Maximum per-day penalties
have since been increased to $37,500.
2 Sackett v. EPA, 622
F.3d 1139 (9th Cir. 2010); http://www.ca9.uscourts.gov/datastore/opinions/2010/09/17/08-35854.pdf.
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