A response to a Sackett critique

December 05, 2013 | By DAMIEN SCHIFF

In Sackett’s Limit,  Nathaniel Johnson argues that the United States Supreme Court’s decision in Sackett v. EPA, which holds that EPA compliance orders issued under the Clean Water Act are subject to judicial review under the Administrative Procedure Act, bodes ill for the Nation’s waters in particular and vigorous environmental protection generally.  Mr. Johnson explains that allowing blanket judicial review will hamstring EPA’s enforcement. Consequently, Mr. Johnson urges the lower federal courts to limit Sackett to jurisdictional challenges to compliance orders.  There are several problems with Mr. Johnson’s premise, as well as his prescription.

First, it is by no means clear that allowing judicial review of compliance orders would preclude EPA’s effective administration of the Act.  It is not in the agency’s interest to pursue an enforcement action when it has no authority over the land-use activity in question, for this approach would result in a needless expenditure from the agency’s enforcement budget.  Allowing judicial review of compliance orders will help to avoid these costly misuses of the agency’s authority.  Moreover, allowing judicial review will have the salutary effect of incentivizing pre-enforcement agency investigation, which presumably will enhance the quality of EPA’s enforcement decision-making.

Second, as Justice Scalia’s majority decision underscores, there is a great danger to arguing against judicial review on the ground that such review will hamper agency enforcement, because that “will be true for all agency actions subjected to judicial review.”   But the Administrative Procedure Act’s “presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.”

Third, Mr. Johnson’s critique ignores that EPA has open to it many adequate means to ensure the integrity of the Nation’s waters without sacrificing the constitutional rights of property owners.

Fourth, Mr. Johnson’s suggested approach for lower federal court interpretation of Supreme Court precedents is both aberrant and opportunistic.  He urges the lower courts to limit Sackett according to a rationale contained in a concurring opinion authored by one justice and joined by no other.   Would Mr. Johnson also urge the lower federal courts to hold various federal laws unconstitutional under the Tenth Amendment, because Justice Thomas has through various solo concurrences advocated an originalist interpretation of the Commerce Clause?   I rather doubt it.

Finally, Mr. Johnson’s prescription for avoiding the anticipated havoc of Sackett on the environment is to limit the decision to “jurisdictional” challenges.   But what precisely is a jurisdictional challenge?  Whether wetlands, as defined by regulation or the Corps of Engineers Wetlands Delineation Manual, are present?   Whether such wetlands have a “significant nexus” to traditional navigable waters?   Whether the discharge activity falls within a statutory exemption?   Whether the material discharged was a “pollutant”?   As the Supreme Court has recently admonished in a related context, “judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.'”   By the same token, lower federal courts would be well advised to reject Mr. Johnson’s purported panacea.

In sum, Mr. Johnson believes that the environment would be best served by adopting a limiting construction espoused in Justice Ginsburg’s Sackett concurrence.  I would respectfully counter that, although obviously not binding, Justice Alito’s Sackett concurrence better captures the majority’s sentiments.  His concurrence correctly acknowledges that EPA’s position in Sackett—one, I suspect, with which Mr. Johnson sympathizes— “would have put the property rights of ordinary Americans entirely at the mercy of [EPA] employees.”   It also correctly recognizes that justice demands more, not less, solicitude to property owners who too often are forced “to dance to the EPA’s tune.”