Supreme Court Allows Appeal of EPA Clean Water Act Compliance Order

Good news for everyone that has ever faced a Clean Water Act compliance order.  In Sackett v. EPA, the US Supreme Court unanimously ruled that recipients of CWA compliance orders are allowed to appeal them under the federal Administrative Procedures Act.

The Sacketts are landowners who began construction on a parcel of land, until they received a compliance order from the EPA telling them they were filling a wetland in violation of Section 404  of the CWA and must stop and return the land to its original state.  If not, EPA might (or might not) bring a civil or criminal action against them, with fines of tens of thousands of dollars per day.  The Sacketts could do as EPA demanded, or could wait for EPA to bring the lawsuit, at which time they might be facing  millions of dollars in potential accrued penalties. 

If this situation were analogized to a poker game, EPA would be kicking in only its ante, and forcing the Sacketts to bid higher and higher, secure in the knowledge that if it (EPA) won, it would collect the pot, but if the Sacketts won, they wouldn't even get their ante back. With that kind of stacked game, it's no surprise that most people cave when faced with a compliance order.

The Sacketts tried to appeal EPA's finding that they were filling a wetland. EPA took the position it always has, that compliance orders are not final actions under the APA, and that the right to appeal its determination that the Sackett's property is a wetland  must wait until it decides whether to file suit.  An Idaho US District Court and the Ninth Circuit (motto: "Often Wrong, Never in Doubt") agreed with EPA.

The Supreme Court rejected EPA's position, expressing concern  about EPA turning the screws on individuals in this fashion. As Justice Alito said in a concurring opinion, "[i]n a nation that values due process, not to mention private property, such treatment is unthinkable."  (Justice Alito also made a plea for Congress to better define "waters of the United States," something that is long overdue.)  

This is the holding from the  Syllabus:

(a) The APA provides for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U. S. C. §704.The compliance order here has all the hallmarks of APA finality. Through it, the EPA "determined" "rights or obligations,"
(b) The Clean Water Act is not a statute that "preclude[s] judicial review" under the APA, 5 U. S. C. §701(a)(1). The APA creates a "presumption favoring judicial review of administrative action." The Sacketts may bring a civil action under the APA to challengethe issuance of the EPA’s order. Pp. 4–10.Bennett v. Spear, 520 U. S. 154, 178, requiring the Sacketts to restore theirproperty according to an agency-approved plan and to give the EPA access. Also, "legal consequences . . . flow" from the order, ibid., which, according to the Government’s litigating position, exposes theSacketts to double penalties in future enforcement proceedings. The order also severely limits their ability to obtain a permit for their fillfrom the Army Corps of Engineers, see 33 U. S. C. §1344; 33 CFR§326.3(e)(1)(iv). Further, the order’s issuance marks the "consummation" of the agency’s decisionmaking process, Bennett, supra, at 178, for the EPA’s findings in the compliance order were not subject tofurther agency review. The Sacketts also had "no other adequateremedy in a court," 5 U. S. C. §704. A civil action brought by the EPAunder 33 U. S. C. §1319 ordinarily provides judicial review in suchcases, but the Sacketts cannot initiate that process. And each day they wait, they accrue additional potential liability. Applying to the Corps of Engineers for a permit and then filing suit under the APA if that permit is denied also does not provide an adequate remedy for the EPA’s action. Pp. 4–6.Block v. Community Nutrition Institute, 467 U. S. 340, 349. While this presumption "may be overcome by inferences of intent drawn from the statutory scheme as a whole," ibid., the Government’s arguments do not support an inference that the Clean Water Act’s statutory scheme precludes APA review. Pp. 7–10

Information about the case, including briefs, an audio transcript of the hearing, and the opinion, can be found here.  Here's an analysis by Lyle Denniston at the excellent SCOTUS blog.  Mr. Denniston notes that the Supreme Court granted relief to the Sacketts that it denied to GE, which last term tried to get the Court to allow it to challenge a compliance order from EPA