SCOTUS Decision in Sackett v. EPA Weakens Government's Ability to Respond to Urgent Threats to Water Quality

by Nina Mendelson

March 21, 2012

In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts' constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were entitled to judicial review of EPA's order as soon as EPA issued it. It rejected the agency's arguments that the Act ought to be understood to preclude judicial review until EPA brought an enforcement action in court. In so doing, it limited the usefulness of an important EPA enforcement tool.

The Sacketts' side of the case had a number of sympathetic aspects. Two individuals were up against a big federal agency, and the agency was requiring them to remove fill and plant vegetation on their own property. It is also a case involving wetlands. As the Court pointed out in today's decision, there is significant – and ongoing – uncertainty about just which wetlands are protected by federal law. Neither the Court nor EPA has done much to clarify that.

But the decision's effect may go significantly beyond wetlands. It also may interfere with the EPA's ability to respond quickly to protect the nation's waterways from all kinds of threats, including threats we can all agree are urgent. These might include overflowing lagoons from concentrated animal feeding operations (CAFOs), malfunctioning sewage treatment plants, or the discharge of high volumes of pollutants from a factory outfall or a mine into a river. EPA is likely to be stuck in litigation over compliance orders not only in wetlands cases, but in these cases of obviously urgent threats to water quality. It may use compliance orders less often and when it does use them, it may take much longer for the orders to go into effect. 

Moreover, similar, though not identical, language appears in the Clean Air Act and the Solid Waste Disposal Act. EPA is likely to face arguments about judicial review of compliance orders in these settings, too. It may be that Sackett also ultimately affects the usefulness of compliance orders to address environmental threats not only for water pollution, but from air pollution and from solid waste disposal. Congress should amend the Clean Water Act, as well as these other acts, to clarify, at least for urgent environmental threats, that judicial review of a compliance order should have to wait. 

Also from Nina Mendelson

Nina Mendelson serves as Professor of Law at University of Michigan Law School.

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