1. Sackett v. EPA: Score One for Landowners in SCOTUS Decision

    "This is not a case about the correctness of EPA’s policies; it’s a case about government employees not behaving consistent with fundamental American values" - Foley Hoag

    For your interest, here’s a roundup of analysis to do with an interesting Supreme Court decision (Sackett v. EPA) handed down March 21, 2012. 

    File under landowner rights, the Clean Water Act, and related matters:

    David Cooke from law firm Allen Matkins on the unanimous Supreme Court ruling that parties who receive administrative compliance orders from the U.S. Environmental Protection Agency under the authority of the federal Clean Water Act are entitled to “pre-enforcement review,” and may bring lawsuits to challenge the jurisdictional basis for such orders in court. (Sackett v EPA - Supreme Court Authorizes Pre-Enforcement Review of Clean Water Act Compliance Orders by Allen Matkins Leck Gamble Mallory & Natsis LLP)

    Landowners Can Now Challenge Corps Without Fear Of Penalties (Wendel Rosen):

    "The EPA issued a compliance order asserting that landowners violated the Clean Water Act because they filled wetlands on their land without obtaining a permit. The EPA relies on these compliance orders and the threat of significant fines (up to $37,500 a day) to ‘urge’ landowners to comply quickly with such orders. These landowners fought back, claiming their property was not a wetland, but, under previous rulings, they had no way to challenge the EPA’s unilateral wetland claim" Read on»

    Clean Water Act Orders Subject to Pre-Enforcement Review (Morgan Lewis)

    "The case provides parties subject to Clean Water Act compliance orders with the ability to seek pre-enforcement judicial review of the question of whether they are subject to EPA’s jurisdiction. Moreover, Justice Ruth Bader Ginsburg’s concurring opinion raises whether pre-enforcement judicial review also is available to contest the terms and conditions of such compliance orders—a question the full Court did not reach. This decision may also open the door for pre-enforcement review of orders under other environmental statutes that do not expressly preclude judicial review, such as "imminent hazard" orders issued under Section 7003 of the Resource Conservation and Recovery Act…" Read on»

    The Subtext of Sackett v. EPA (Foley Hoag)

    "The language used in Sackett is both sarcastic and highly personalized.  In a sentence dripping with sarcasm, Justice Scalia notes that EPA’s order concluding that there was a violation of the Clean Water Act constituted the end of EPA’s administrative deliberation; however, he goes on to comment snidely: ‘the agency may still have to deliberate over whether it is confident enough about this conclusion to initiate litigation, but that is a separate subject.’ Significantly, in the opening salvo of his Concurring Opinion, Justice Alito speaks not of EPA but of EPA’s employees – ‘[the federal government’s position] would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees’.  Justice Alito’s reference to the EPA’s employees personalizes the point.  This is not a case about the correctness of EPA’s policies; it’s a case about government employees not behaving consistent with fundamental American values.” Read on»

    EPA Loses — Unanimously — In Sackett: How Broadly Does It Sweep? (Foley Hoag)

    "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 determina­tion 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 viola­tions alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.

    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.” Read on»

    Supreme Court Expands Right to Challenge Federal Assertions of Clean Water Act Regulatory Jurisdiction (White & Case LLP)

    Prior to this decision, there were only two ways that private parties could be assured of obtaining judicial review of EPA and Corps’ assertions of wetland jurisdiction over specific properties: by waiting for the Corps to issue or deny a Clean Water Act § 404 permit and then filing a challenge under the APA, or by waiting for the Justice Department to file an enforcement action against a person in U.S. District Court. Most courts have refused to hear challenges to administrative compliance orders on grounds that such orders did not represent ‘final agency action’ and that the Clean Water Act barred pre-enforcement review. On similar grounds, courts also generally have refused to hear challenges to formal ‘jurisdictional determinations’ issued by the Corps. The result was that most property owners had little choice but to acquiesce to EPA and Corps assertions of wetland jurisdiction over their properties, even if they disagreed with the agencies, because the price of getting into court was too high.” Read on»

    Supreme Court Rules that U.S. EPA Unilateral Compliance Orders Under the Clean Water Act Are Final Actions Judicially Reviewable (K&L Gates LLP)

    “This case may be viewed as having advanced the education of the Court on the question of due process in unilateral administrative orders. In General Electric Co. v. Jackson, the D.C. Circuit upheld the constitutionality of CERCLA UAOs, but the Supreme Court denied certiorari. The D.C. Circuit relied on the notion that UAO recipients ‘may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court.’ The Sackett decision shows that the Court is becoming aware of the illusory nature of such a remedy, since EPA cannot be ‘forced’ to sue, while penalty claims accrue as though they were liens. The Court’s expressions of concern in Sackett about the consequences of EPA’s use of unappealable orders suggest that there may be a due-process question that will be deemed cert.-worthy in the future.” Read on»

    U.S. Supreme Court Opens Courthouse Doors for Early Challenges to Environmental Agency Orders (Morrison & Foerster LLP)

    The High Court’s decision may also give rise to more judicial challenges to EPA’s wetland determinations and the reach of the CWA, a complex question that the petitioners did not advance and the Court did not address but that the concurring opinions raise. The majority opinion states that it did not resolve the dispute on the merits, but it did not expressly limit the scope of the petitioners’ challenge to the compliance order.” Read on»

    US Supreme Court Rules Property Owners May Sue the EPA Over a Wetlands Restoration Order (Lane Powell PC)

    “In a concurring opinion, Justice Alito pointed out a larger, as yet-undecided issue (and one that will be crucial to the Sacketts’ jurisdictional claims) — what exactly constitutes ‘waters of the United States’ subject to the Clean Water Act. The ambiguous term has left the courts and the EPA to ‘feel their way on a case-by-case basis’ about the scope of jurisdiction over wetlands. According to Justice Alito: ‘Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.’” Read on»

    Supreme Court Weakens EPA’s Enforcement Regime (Bryan Cave)

    “The case has potential ramifications beyond the Clean Water Act. Other than CERCLA (which has an express provision barring pre-enforcement review), key environmental statutes such as the Clean Air Act and RCRA contain similar administrative order regimes.” Read on»

    Supreme Court Rules Property Owners May Challenge EPA Compliance Orders (Parker Moore)

    “This emphatic decision puts to an end EPA’s heavy-handed practice under the CWA of forcing citizens either to comply, with no judicial recourse, with an arguably illegal order or, if the citizen refuses, to face a federal lawsuit along with mounting penalties for every day the citizen declines to adhere to the agency’s compliance order.” Read on»

    See also:

     Sackett v. EPA: U.S. Supreme Court Unanimously Affirms Judicial Review of EPA Clean Water Act Unilateral Compliance Orders (Proskauer Rose LLP) 

     Sackett v. EPA – Supreme Court Allows Pre-Enforcement Review of Clean Water Act Compliance Orders (Greenberg Glusker Fields Claman & Machtinger LLP) 

     Sackett v. EPA: Property Owners May Challenge EPA Orders (Mintz Levin) 

    U.S. Supreme Court Opens Courthouse Doors for Early Challenges to Environmental Agency Orders (Morrison & Foerster LLP) 

     U.S. Supreme Court Expands Judicial Review of Clean Water Act Enforcement Orders (Farella Braun + Martel LLP) 

     Supreme Court to U.S. EPA: No Bullying Allowed Under Clean Water Act (Dinsmore & Shohl LLP) 

     U.S. Supreme Court Authorizes Pre-Enforcement Review of Clean Water Act Compliance Orders (Allen Matkins Leck Gamble Mallory & Natsis LLP) 

    Read the Supreme Court decision: Sackett v. EPA

    Additional Environmental Law updates»