Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


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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Maximum per-day penalties have since been increased to $37,500.

Sackett v. EPA, 622 F.3d 1139 (9th Cir. 2010); http://www.ca9.uscourts.gov/datastore/opinions/2010/09/17/08-35854.pdf.