New Avenue Opens for Challenges to CWA Compliance Orders
The U.S. Supreme Court's decision in Sackett v. EPA recognized that property owners have the right to immediately go to court to challenge the validity of administrative compliance orders issued by EPA under the Clean Water Act.
- By John Echeverria, Andrew Fowler
- Jan 19, 2013
The March 2012 U.S. Supreme Court decision in Sackett v. Environmental Protection Agency overturned many prior federal appeals court decisions concluding that owners who receive compliance orders but disagree with EPA’s position that they are violating the Clean Water Act have only two choices: comply with the order or run the risk of EPA's bringing a potentially costly civil enforcement action against them. Now, property owners have the additional option of going court to challenge the EPA position that the Clean Water Act applies to them, strengthening the hands of property owners in such cases.
The case involved Michael and Chantell Sackett, who owned land in the Idaho panhandle. In preparation for building a house, the Sacketts filled in low-lying areas on the property with dirt and rock. A few months later, EPA sent the Sacketts an "administrative compliance order" informing them it believed the property contained wetlands subject to Clean Water Act jurisdiction and that they had violated the Act by filling in the wetlands without obtaining a permit. The order directed them to restore the site and informed them that failure to comply could subject them to significant civil penalties for violating the Clean Water Act and the compliance order itself. The Sacketts requested a hearing before EPA to respond to the agency's position that they had filled wetlands, but EPA denied the request, offering instead to discuss the matter on an "informal" basis.
Dissatisfied with EPA's response, the Sacketts brought suit in federal court under the Administrative Procedure Act seeking to challenge the validity of EPA's determination that their property was subject to the Clean Water Act.
Both the federal district court and the 9th U.S. Circuit Court of Appeals dismissed the Sacketts' lawsuit against EPA for lack of subject matter jurisdiction. Following the established lower federal court precedent on the issue, the courts ruled that judicial review of the EPA compliance orders was precluded unless and until the agency itself sought enforcement of such orders in court.
Reversing the Ninth Circuit, the Supreme Court held that the Sacketts could bring an action pursuant to the Administrative Procedure Act challenging the validity of the Clean Water Act compliance order in advance of any civil enforcement action brought by the government. The court, in a unanimous decision written by Justice Antonin Scalia, did not reach the issue of the whether the Sacketts had actually violated the Clean Water Act.
Professor John Echeverria joined the Vermont Law School faculty in 2009. He previously served for 12 years as executive director of the Georgetown Environmental Law & Policy Institute at Georgetown University Law Center. Prior to that, he was general counsel of the National Audubon Society and general counsel and conservation director of American Rivers, Inc. Echeverria was an associate for four years in the Washington, D.C., office of Hughes, Hubbard & Reed. Immediately after graduating with joint degrees from Yale Law School and the Yale School of Forestry and Environmental Studies, he served for one year as law clerk to the Honorable Gerhard Gesell of the U.S. District Court in the District of Columbia. He has written extensively on the takings issue and other aspects of environmental and natural resource law. He has frequently represented state and local governments, environmental organizations, planning groups, and others in regulatory takings cases and other environmental litigation at all levels of the federal and state court systems. In 2007, Professor Echeverria received the Jefferson Fordham Advocacy Award to recognize outstanding excellence within the area of state and local government law over a lifetime of achievement.
Andrew Fowler, a native of Grosse Pointe, Mich., is a second-year JD student at the Vermont Law School and a staff editor at the Vermont Journal of Environmental Law (VJEL). He also is co-captain of the VLS hockey team. Last summer, he interned for Chief Judge Gerald Rosen of the U.S. District Court for the Eastern District of Michigan. An all-around outdoors enthusiast, he plans to practice environmental and real estate law at a private firm.