Will the Sacketts Prevail?

by Jacqueline Hartis on March 14th, 2012

On January 9, 2012, the United States Supreme Court heard oral arguments in Sackett v. EPA, Supreme Court Case No. 10-1062, a case that has the potential to change Environmental Protection Agency (“EPA”) administrative enforcement under the Clean Water Act (“CWA”). We eagerly await the Supreme Court’s decision in this present day case of David [the Sacketts] versus Goliath [the EPA].

The issues before the Supreme Court in Sackett v. EPA were (1) whether the Sacketts, [the petitioners the case] could seek pre-enforcement judicial review, pursuant to the Administrative Procedure Act, 5 U.S.C. § 704 (“APA”), of an administrative compliance order issued by the EPA; and (2) whether, if not, their inability to seek pre-enforcement judicial review of the administrative compliance order violates their rights under the Due Process Clause?

Case History: Approximately four (4) years ago, the EPA issued a compliance order against Mike and Chantell Sackett, charging them with violating the Clean Water Act by filling in a portion of their property allegedly containing a jurisdictional wetland. The compliance order required that the Sacketts restore their property to its alleged predisturbance wetlands condition and also imposed upon them the threat of tens of thousands of dollars per day in civil fines if they did not immediately comply with the order.

The Sacketts petitioned EPA for a hearing to challenge the wetland determination, and after EPA refused, filed suit in district court. EPA argued that review of an agency order was barred unless the agency first sued and insisted that the Sacketts comply with the order, threatening penalties if they did not. The district court agreed, and dismissed the Sacketts’ suit for lack of jurisdiction. The Sacketts then appealed to the Ninth Circuit, who affirmed the district court. The Sacketts appealed the matter to the Supreme Court, who granted cert on June 28, 2011.

Legal Framework: The CWA and its implementing regulations provide the EPA [and the Corps of Engineers] with a number of different mechanisms by which to enforce the CWA’s prohibition on discharging pollutants into regulated waters. As relevant here, when EPA finds that any person is in violation of Section 1311 of the CWA [the provision prohibiting unauthorized discharges of pollutants into navigable waters of the United States], the agency shall either issue an administrative compliance order pursuant to 33 U.S.C. Section 1319(a)(3) requiring the person to comply with such section or requirement [the instant case], or bring a civil action to enforce the Act pursuant to Section 1319(b). Section 1319(b) authorizes EPA to initiate a judicial enforcement action for appropriate relief, including a temporary or permanent injunction for any violation for which EPA is authorized to issue a compliance order under Section 1319(a). In an action brought under Section 1319(b), the district court may also impose civil penalties for violation of the CWA and for violation of an administrative compliance order issued pursuant to Section 1319(a)(3). The CWA provides for civil penalties up to $37,500.00 per day for both violation of the CWA and violation of administrative compliance order.

Stated another way, when the EPA believes that a landowner has engaged in a violation of environmental laws, it may issue an administrative compliance order requiring the landowner to take certain actions. If the landowner does not comply with the administrative compliance order, the EPA may seek judicial enforcement of the order (and seek penalties for both the alleged violation of the CWA and non-compliance with the administrative compliance order). This puts parties who contest the validity of the allegations against it, in a bad situation because currently, a party must wait until the EPA seeks judicial enforcement of an administrative compliance order before the landowner can challenge the order, thus exposing itself to potential penalties for non-compliance with the order.

Conclusion: The decision in Sackett v. EPA could alleviate the threat of potential penalties for non-compliance with an order by allowing for direct judicial appeal of administrative compliance orders. In that way, alleged CWA violators would essentially “get their day in court” to argue the EPA’s finding of jurisdictional wetlands instead of being forced to comply with the order or face the threat of penalties for not complying with the order while waiting to see if the EPA will seek to enforce the order.

Like many environmental practitioners, we have a personal interest in the outcome of the Sackett case, because we represent a client in almost identical procedural circumstances as the Sacketts. In fact…our client even has the same environmental consultants as the Sacketts, Ray and Susan Kagel. If oral arguments are any predictor of how the Supreme Court may rule in this case, things may be looking up for the Sacketts.

 

 

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