EPA Compliance Orders Aren’t Lawsuit-Proof

     (CN) – An Idaho couple can challenge a determination that their wetland property is subject to the Clean Water Act and the costly fines that come with violations, the Supreme Court ruled Wednesday.



     Chantell and Michael Sackett own less than an acre of residential property in Bonner County, Idaho, just north of Priest Lake.
     While building a house on the lot, the Sacketts filled a portion of the property with dirt and rock. Claiming that the Sacketts’ property was subject to the Clean Water Act, the Environmental Protection Agency quickly sent the couple c a compliance order.
     Parties who ignore compliance orders and then lose to the EPA in a civil action face a civil penalty of $75,000.
     The Sacketts asked for a hearing to fight the agency’s authority, but the EPA denied the request. A federal judge then dismissed their suit for declaratory and injunctive relief, finding a lack of subject-matter jurisdiction.
     Though the 9th Circuit affirmed, the Supreme Court unanimously reversed Wednesday.
     The Administrative Procedures Act provides an avenue for the Sacketts to challenge the compliance order, according to the court.
     “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,” Justice Antonin Scalia wrote for the court. “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 court disagreed with the government’s position that the Clean Water Act precludes judicial review under the APA.
     “The government warns that the EPA is less likely to use the orders if they are subject to judicial review,” Scalia wrote. “That may be true – but it will be true for all agency actions subjected to judicial review. The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review – even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. 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.”
     Justice Ruth Bader Ginsberg wrote separately to raise another issue that the Sacketts will face in litigation: whether they can challenge the terms and conditions of the compliance order, as well as EPA authority.
     In yet another concurring opinion, Justice Samuel Alito hammered the government for trying to “put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.”
     “In a nation that values due process, not to men­tion private property, such treatment is unthinkable,” Alito wrote.
     “The court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determina­tion under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of viola­tions alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.”
     Alito said Congress needs to fill in the gaps to the “notoriously unclear” Clean Water Act.
     “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,” he concluded.

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