For once, speculation about oral argument proved solid. The
Supreme Court's unanimous ruling today in Sackett v. EPA means that EPA must
allow judicial review of enforcement orders issued pursuant to its
authority under the Clean Water Act. The question now is what the
true scope of the decision will be. That question really has two
The first is what will happen to CWA enforcement. On that score,
I actually largely share Justice Alito's view:
"The Court's decision
provides a modest measure of relief. At least, property owners like
petitioners will have the right to challenge the EPA's
jurisdictional determina-tion under the Administrative Procedure
Act. But the combination of the uncertain reach of the Clean Water
Act and the draconian penalties imposed for the sort of
viola¬tions alleged in this case still leaves most property
owners with little practical alternative but to dance to the
Unfortunately, the heavy hand of government regulation only got
a little lighter as a result of this decision, and Justice Alito is
absolutely correct that uncertainty about jurisdiction does not
help land owners. We're not done with post-Rapanos litigation.
The broader question of course is what happens to EPA's
authority under other statutes. It's difficult to see how
EPA's authority under the Clean Air Act fares any better than
its CWA authority. The language in the CAA is very similar
– and it certainly does not contain an explicit statutory
preclusion on pre-enforcement review.
CERCLA, on the other hand, likely survives, at
least for now. It specifically provides that
"No Federal court shall have
jurisdiction ... to review any order issued under section 9606(a)
of this title, in any action except one of the following:
(1) An action under section 9607 of
this title to recover response costs or damages or for
(2) An action to enforce an order
issued under section 9606(a) of this title or to recover a penalty
for violation of such order."
Analysis of whether the Clean Water Act bars judicial review of
enforcement orders seems critical to the Court's holding in
Sackett. The Court specifically noted that "nothing
in the Clean Water Act expressly precludes judicial review
under the APA or otherwise." The italics on
"expressly" are Justice Scalia's, not mine.
One might almost conclude that those italics were provided
precisely so that GE would not get too excited about renewing its
challenge to CERCLA's order authority.
Turning back to Justice Alito, his concurrence suggests that he
would probably be willing to entertain a constitutional challenge.
However, given the path of GE's challenge and the unanimous
decision in Sackett grounded squarely in the language of
the Clean Water Act, rather than due process, I'm going to go
out on a limb and suggest that it's going to be difficult to
win a challenge to EPA's bar on preenforcement review of
enforcement orders under CERCLA. Of course, stranger things have
happened, so perhaps I shouldn't speculate.
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On Wednesday, EPA published certain amendments to the Mercury and Air Toxics Standards in the Federal Register. EPA describes most of the changes as "technical corrections," but there is one important substantive change.