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On March 21, 2012 the Supreme Court of the United States decided
Sackett v. EPA, holding that a party subject to a
compliance order issued by the United States Environmental
Protection Agency ("EPA") pursuant to the federal Clean
Water Act ("CWA") may bring an action to challenge that
order without waiting for EPA to commence an enforcement action of
its own.
The Sacketts were owners of a
residential lot in Idaho near to, though separated by several other
lots from, a lake. In April and May 2007, the Sacketts had filled
in half an acre of their land in the process of developing the lot.
EPA issued a compliance order ("Order), finding that the
property contained wetlands, and that by placing fill on the
property the Sacketts had discharged a pollutant without a permit
in violation of the CWA. The Order asserted the Sacketts were in
continuing violation of the Act, and directed the Sacketts to
restore the property under an EPA workplan.
The Sacketts disagreed that the
property contained wetlands subject to the CWA requirements and
sought a hearing with EPA, which EPA denied. The Sacketts then
filed an action in federal district court, seeking declaratory and
injunctive relief and asserting that the issuance of the compliance
order was arbitrary and capricious within the meaning of the
federal Administrative Procedure Act ("APA"). The
district court and the intermediate appeallate court both held that
the Order was not immediately judicially reviewable and that the
Order could only be challenged in court after EPA commenced an
enforcement action potentially involving substantial fines for
non-compliance.
In finding that the Order was a
final agency action subject to immediate review, the Supreme Court
held that the Sacketts had no other remedy in court, since it was
within EPA's discretion whether and when to commence an
enforcement action. Such an action might be commenced after
potentially ruinous fines had already accrued (up to $75,000 per
day). Further contrary to EPA's contention, the Court found
that in light of the EPA's denial of the Sacketts' hearing
request, the findings and conclusions in the Order were not subject
to further agency review.
The case is important in that it
supports the right of a party, under appropriate circumstances, to
challenge agency action without the need to await full blown agency
enforcement proceedings. It should be noted, however, that the
long-term impact of the court's decision on future EPA
enforcement actions.
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