Sackett v. EPA: Challenging EPA Compliance Orders

Environmental Law


All Michael and Chantell Sackett wanted to do was build a house on their 2/3-acre residential lot in Bonner County, Idaho. They probably did not think the construction of their home would involve a decision by the Supreme Court of the United States.

The Sacketts filled their small parcel with dirt and rock in order to prepare for construction. Their property is located just north of a lake, but separated by several lots containing permanent structures. Nevertheless, some months later, the Sacketts received a compliance order from the United States Environmental Protection Agency (“EPA”). The EPA had determined that the Sacketts had illegally filled a wetland.

The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” without a permit, into the “navigable waters,”–which the Act defines as “the waters of the United States.” § 1311, § 1344, § 1362(7). The EPA found the Sacketts’ property to contain wetlands as that term is defined by 33 C.F.R. § 328.4(8)(b). The property is adjacent to a lake that is a “navigable water” within the meaning of § 502(7) of the Clean Water Act. When they placed dirt and rock on the property without a permit, the Sacketts had engaged in the discharge of a pollutant into a navigable water, violating the Clean Water Act according to the EPA. The EPA ordered the Sacketts to undertake activities immediately to restore their property to its prior condition.

The case rested on whether the Sacketts could appeal EPA’s order and obtain a hearing to present arguments in opposition to EPA’s wetland determination. The Sacketts argued that the EPA’s issuance of the compliance order was “arbitrary and capricious” under the Administrative Procedure Act (the “APA”), 5 U.S.C. § 706(2)(A), and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment of the U.S. Constitution. The EPA argued that the Sacketts were not entitled to a hearing as the review of an agency order was barred until the Agency sued. The District Court agreed with the EPA and dismissed the Sacketts suit on the basis of lack of jurisdiction. The Sacketts appealed to the Ninth Circuit, which affirmed the District Court’s determination, further holding that the Clean Water Act “impliedly” barred pre-enforcement review under the APA, and EPA’s refusal to hold a hearing based on the compliance order did not violate the Sackett’s due process.

On March 20, 2012, the U.S. Supreme Court in Sackett v. EPA, struck down EPA’s ban on “pre-enforcement review” under the Clean Water Act. The Court held that the Sacketts had a right to appeal an EPA compliance order that required them to remove fill from their property and restore it to its previous condition.

The first issue the Court focused on was whether the compliance order was a final agency action. The Court noted that the compliance order “has all the hallmarks of APA finality that our opinions establish.” The Court found that the order “determined” “rights or obligations” by requiring the Sacketts to restore the wetlands on their property. Further, “legal consequences… flow” from the issuance of the order. The Court stated that the order also “severely limits the Sacketts’ ability to obtain a permit from the Army Corps of Engineers.” Finally, the issuance of the order marked the “consummation” of the Agency’s decisionmaking process. For these reasons, the Court rejected EPA’s contention that its action was not final.

Next, the Court was faced with determining whether the Clean Water Act barred pre-enforcement review. Judicial review is typically available under the APA to challenge final agency actions, except where the regulating statute precludes such review. A statute need not expressly preclude judicial review, but there must be legislative intent illustrating Congress’s desire to implicitly bar pre-enforcement review. The EPA argued that although the Clean Water Act did not expressly preclude judicial review, the Act “impliedly” barred such review. Both the District Court and the Ninth Circuit agreed with this argument. However, the Supreme Court was not persuaded by the reasons EPA offered as to why the Clean Water Act precludes review.

Ultimately, the Court held that “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.” The Court concluded “that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and the Clean Water Act does not preclude that review.”

For more information on wetland and Clean Water Act issues, please contact Miriam Villani or Jason Kaplan.

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