Brief Reflections on Sackett v. EPA

Jordan Rodriguez

On March 29, the Supreme Court decided Sackett v. Environmental Protection Agency, recognizing the right of property owners to seek judicial review of administrative compliance orders issued by the EPA under the Clean Water Act. This decision will provide a modicum of procedural protection for individuals and businesses regulated by the Act.

The petitioners, the Sacketts, purchased a small plot in a partially developed subdivision near, but not connected or adjacent to, Priest Lake, Idaho. Preparing to build their home, the Sacketts filled part of their land with dirt and gravel. This caught the eye of the EPA, which declared their plot a “wetland” subject to federal permit jurisdiction. By filling their land with sand and gravel, the EPA declared, the Sacketts violated the Act. The opinion syllabus describes the statutory scheme as follows: The Clean Water Act prohibits “the discharge of any pollutant by any person,” 33 U. S. C. §1311, without a permit, into “navigable waters,” §1344. Upon determining that a violation has occurred, the Environmental Protection Agency (EPA) may either issue a compliance order or initiate a civil enforcement action. §1319(a)(3). The resulting civil penalty may not “exceed [$37,500] per day for each violation.” §1319(d). The Government contends that the amount doubles to $75,000 when the EPA prevails against a person who has been issued a compliance order but has failed to comply.”

After the Sacketts contested the EPA’s findings, the agency served them with an administrative compliance order requiring immediate restoration of the plot and threatening severe fines (quantified by the Solicitor General at oral argument as up to $75,000/day). The Sacketts sought federal judicial review of the compliance order under the Administrative Procedure Act. The District Court of Idaho dismissed their lawsuit, concluding that EPA administrative compliance orders issued under the Act are not “final agency action” subject to judicial review. The Ninth Circuit affirmed. The Supreme Court granted certiorari to determine whether the Administrative Procedure Act permits pre-enforcement judicial review of such an order. The Court also ordered briefing on a second question: whether denying the Sacketts pre-enforcement review violated Due Process Clause.

The Supreme Court unanimously reversed the Ninth Circuit. Writing for the Court, Justice Scalia rested its decision on statutory grounds. Chapter 7 of the Administrative Procedure Act provides for judicial review of “final agency action for which there is no other adequate remedy in a court” (5 U.S.C. § 704). With respect to finality, the Court found the compliance order met “all the hallmarks of finality” that the Court had previously pronounced. 566 U.S. ___ (2012) at 5. The order determined the Sacketts’s rights and obligations (by requiring them to “restore” their property and to provide access to their property and records), it carried significant legal consequences ($75,000 per day), and it consummated agency’s decision-making process (they could not seek further EPA review of the order). Id. at 5-6.

Further, the Sacketts lacked another adequate judicial remedy. The government suggested that the Sacketts could challenge the order in court by applying to the U.S. Army Corps of Engineers for a dredge and fill permit, and then challenge its denial in court. Id. at 6. But the Court swatted down that argument, writing: “The remedy for denial of action that might be sought from one agency does not ordinarily provide an ‘adequate remedy’ for action already taken by another agency. Id. The government also failed to persuade the justices that the CWA precludes judicial review of administrative compliance orders. The Court found nothing in the CWA that expressly precludes judicial review; nor did its review of the statute’s legislative history reveal a clear purpose to proscribe the judicial review that is presumptively available under the APA. Id. at 7-8.

The Court did not reach the due process issue, but during oral arguments several justices expressed concerns about the vague scope of the EPA’s jurisdiction under the CWA, particularly with respect to wetlands. Still, the Court reserved opinion on whether the agency properly asserted jurisdiction over the Sacketts’ land. Justice Alito’s concurrence underscored the persistent regulatory uncertainty that plagues private landowners subject to the CWA. The statute’s reach is “notoriously unclear,” he wrote, and would place property owners whose land “the agency thinks possess[es] the requisite wetness… at the agency’s mercy.” Id. at 2 (Alito, J., concurring). He issued a call for Congress to act and “provide a reasonably clear rule regarding the reach of the Clean Water Act.” Id.

At bottom, Sackett is a narrow victory, and perhaps only a pyrrhic one. While the Court recognized an unqualified right to pre-enforcement of review of the EPA’s compliance orders, it did not clarify the vague basis for the agency’s assertion of jurisdiction under the Clean Water Act. Furthermore, the decision was an aesthetic disappointment, for Justice Scalia omitted the rhetorical flourishes that typically populate his property and environmental opinions. He did crack a joke, however, while he summarized the decision from the bench. The Sacketts, he said, were probably shocked to learn their land contained navigable waters of the United States, “never having seen a ship or other vessel cross their yard.”