Wednesday, March 21, 2012

Supreme Court Decides Sackett v. EPA Unanimously in Favor of the Petitioners

With thanks to Rebecca Bratspies for bringing the Scotus Blog post on this decision to the environmental law professor's listserve, I wanted to highlight excerpts of key passages from today's unanimous decision in Sackett v. EPA authored by Justice Scalia, as well as from the concurrences by Justices Ginsburg and Alito.  As the Court makes clear in its discussion of focus and scope, the opinion is narrowly framed.  However, even with a narrow framing, as has been discussed actively on the discussion list this afternoon, the opinion likely will have significant practical implications for EPA enforcement efforts under this and other similarly framed environmental statutes.

Focus and Scope of the Opinion by Justice Scalia:

We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U. S. C. §500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an administrative compliance order under §309 of the Clean Water Act, 33 U. S. C. §1319. The order asserts that the Sacketts’ property is subject to the Act, and that they have violated its provisions by placing fill material on the property; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan.


The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” §1311, without a permit, into the “navigable waters,” §1344—which the Act defines as “the waters of the United States,” §1362(7). If the EPA determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. §1319(a)(3). When the EPA prevails in a civil action, the Act provides for “a civil penalty not to exceed [$37,500] per day for each violation.” §1319(d). And according to the Government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000—up to$37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order.

The particulars of this case flow from a dispute about the scope of “the navigable waters” subject to this enforcement regime. Today we consider only whether the dispute may be brought to court by challenging the compliance order—we do not resolve the dispute on the merits.


We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Analysis of Final Agency Action:

The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” U. S. C. §704. We consider first whether the compliance order is final agency action. There is no doubt it is agency action, which the APA defines as including even a “failure to act.” §§551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA “‘determined’” “‘rights or obligations.’”....Also, “‘legal consequences . . . flow’” from issuance of the order....The issuance of the compliance order also marks the “‘consummation’” of the agency’s decisionmaking process.

Analysis of Adequacy of Remedy

The APA’s judicial review provision also requires that the person seeking APA review of final agency action have “no other adequate remedy in a court,” 5 U. S. C. §704. In Clean Water Act enforcement cases, judicial review ordinarily comes by way of a civil action brought by the EPA under 33 U. S. C. §1319. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability. The other possible route to judicial review—applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—will not serve either. 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. The Government, to its credit, does not seriously contend that other available remedies alone foreclose review under §704. Instead, the Government relies on §701(a)(1) of the APA, which excludes APA review “to the extent that [other] statutes preclude judicial review.” The Clean Water Act, it says, is such a statute.

Analysis of Whether CWA Precludes Review

Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in determining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to]its express language.” The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review.

The Government first points to 33 U. S. C. §1319(a)(3),which provides that, when the EPA “finds that any person is in violation” of certain portions of the Act, the agency “shall issue an order requiring such person to comply with [the Act], or . . . shall bring a civil action [to enforce the Act].” The Government argues that, because Congress gave the EPA the choice between a judicial proceeding and an administrative action, it would undermine the Act to allow judicial review of the latter....It is entirely consistent with this function to allow judicial review whenthe recipient does not choose “voluntary compliance.” The Act does not guarantee the EPA that issuing a compliance order will always be the most effective choice.

The Government also notes that compliance orders are not self-executing, but must be enforced by the agency in a plenary judicial action. It suggests that Congress therefore viewed a compliance order “as a step in the deliberative process[,] . . . rather than as a coercive sanction that itself must be subject to judicial review.” Id., at 38. But the APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanction....As the text (and indeed the very name) of the compliance order makes clear, the EPA’s “deliberation” over whether the Sacketts are in violation of the Act is at an end....

The Government further urges us to consider that Congress expressly provided for prompt judicial review, on the administrative record, when the EPA assesses administrative penalties after a hearing, see §1319(g)(8), but did not expressly provide for review of compliance orders. But if the express provision of judicial review in one section of a long and complicated statute were alone enough to over- come the APA’s presumption of reviewability for all final agency action, it would not be much of a presumption at all.

Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution. Compliance orders, as noted above, can obtain quick remediationthrough voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review....Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.

Key Passage from Justice Ginsburg Concurrence:

The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion.

Key Passage from Justice Alito Concurrence:

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.

Hari Osofsky

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