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 Chantelle and Mike Sackett
In a decision handed down on March 20, 2012, Justice Antonin Scalia found it easy to give Mike and Chantelle Sackett their day in court. Writing for a unanimous Supreme Court in the case of Sackett v. EPA, Justice Scalia said that the EPA could not find that the Sacketts had illegally filled wetlands on their property, order them to remove the fill, and then threaten them with penalties without allowing them to appeal the order.

U.S. Supreme Court 2012
In Sackett, the Supreme Court struck down EPA’s ban on “pre-enforcement review” under the Clean Water Act (“CWA”), finding that an administrative compliance order issued by EPA is “final” for purposes of judicial review under the Administrative Procedure Act (“APA”) and that nothing in the CWA bars a party from filing suit to challenge such an order before EPA initiates a judicial enforcement action. While Sackett likely does not affect orders issued under CERCLA, which contains an explicit pre-enforcement bar, parties will almost certainly argue that Sackett allows pre-enforcement review under statutes without explicit pre-enforcement bars, such as the Resource Conservation and Recovery Act (“RCRA”) and the Clean Air Act (“CAA”).

The decision raises a host of questions for environmental lawyers and their clients, both in the government and the regulated community. For example:

  • Will the Justice Department require a greater level of review of EPA orders, knowing it is more likely to have to defend them?
  • Does the Sackett decision apply retroactively to allow parties already complying with an enforcement order to now challenge that order?
  • Will parties currently in negotiation with EPA regarding compliance with an enforcement order now see benefit in appealing – or at least threatening to — in the hope of gaining a tactical advantage?
  • What kind of burden will the decision place on EPA and state agency personnel, who will likely now have to devote more resources to preparing for litigation?
  • Will filing an APA challenge succeed in tolling the accrual of penalties? If the challenge is unsuccessful, will penalties run from the date of the order or the date of final resolution of the challenge?
  • To what extent will state-level enforcement actions under delegated programs be impacted?
(Marten Law)