Supreme Court Rules Against EPA on CWA Compliance Orders

In a unanimous decision earlier this week, the Supreme Court rejected the Environmental Protection Agency’s (“EPA”) position that compliance orders issued under the Clean Water Act (“CWA”) are not subject to judicial review under the Administrative Procedure Act (“APA”) in Sackett v. EPA. Justice Alito, in a concurring opinion, rejected EPA’s view that such orders were not immediately reviewable as a final administrative action by pointing to the practical implications of such authority: “The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of [EPA] employees.”

The petitioners, Michael and Chantell Sackett, both residents of Idaho, received a compliance order from EPA in 2007 informing them that they had violated the CWA by placing dirt on their 2/3-acre vacant lot in preparation for construction of their home. EPA’s compliance order asserted that the Sacketts’ lot contained wetlands subject to EPA regulation under the CWA and that the Sacketts violated the CWA by discharging dirt (dirt is a “pollutant” under CWA definition) into a wetland. The EPA compliance order required the Sacketts to restore their lot to its original condition or begin accruing escalating fines from the agency. The Sacketts’ requested an administrative hearing, which EPA denied, and then the Sacketts sought relief from the U.S. District Court. The District Court found that the APA (which generally allows review of final agency action) does not allow for review of the Sacketts’ claims because the CWA provides a different process and the need for administrative efficiency in protecting waters of the U.S. The Ninth Circuit Court of Appeals agreed on appeal. The Supreme Court granted certiorari to resolve the conflict to determine if the compliance order is a “final agency action” and if it is, whether it is reviewable by a court under the APA. Also, possibly at issue and in need of desperate clarification was the definition of “navigable water” triggering EPA jurisdiction to regulate under the CWA.

The Supreme Court reversed the 9th Circuit decision, holding that compliance orders are final agency actions subject to judicial review under the APA. However, the Court did not provide any clarity on the underlying issue—the question of what constitutes “navigable water” for purposes of regulation under the CWA—instead urging Congress and/or the regulatory agencies to more clearly define that term.

Justice Scalia wrote the majority opinion and was joined by concurring opinions by Justice Ginsburg and Alito. The change in law will significantly change how EPA works toward meeting the goal of zero net loss of wetlands.

 

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