July 9, 2013

EPA admits that Sackett applies beyond the Clean Water Act

By Damien M. Schiff Senior Attorney

In Sackett v. EPA, the United States Supreme Court held that compliance orders issued by EPA under the Clean Water Act are judicially reviewable under the Administrative Procedure Act.  Earlier (and I may say rather quietly) this year, EPA’s Office of Civil Enforcement issued a memo to regional counsel and enforcement sections that interprets Sackett.  In the memo, EPA takes the position (correctly, in my view) that Sackett authorizes judicial review of EPA orders issued under the authority of statutes other than the Clean Water Act.  Specifically, the memo concludes that Sackett authorizes judicial review of:

(i) Stop Sale, Use, or Removal Orders under section 13 of the Federal Insecticide and Fungicide Act; (ii) Stop Work Orders under sections 113(a)(5) or 167 of the Clean Air Act; (iii) Administrative Compliance Orders under section 113(a) of the Clean Air Act; (iv) Administrative Compliance Orders under section 1414 of the Safe Drinking Water Act (v) Emergency Orders under section 1431 of Safe Drinking Water Act; (vi) Administrative Compliance Orders under section 325(a) of the Emergency Planning and Community Right-To-Know Act; (vii) Administrative Compliance Orders under section 3008(a) of the Resource Conservation and Recovery Act; (viii) Interim Status Corrective Action Orders under section 3008(h) of Resource Conservation and Recovery Act; (ix) Corrective Action Orders under section 9003(h) of Resource Conservation and Recovery Act; and (x) Administrative Compliance Orders under section 9006(a) of Resource Conservation and Recovery Act.

The memo also states that for all these orders, the issuing official must ensure that the order notifies its recipient that the latter has the right to seek judicial review thereof.  Although we here at PLF rightly criticize EPA for frequently abusing its authority and mistreating the regulated public, on this memo the agency deserves praise for acknowledging and fully implementing its obligations.

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Sackett v. Environmental Protection Agency

Chantell and Michael Sackett received a local permit to build a modest three-bedroom home on a half-acre lot in an existing, partially built-out residential subdivision in Priest Lake, Idaho. The home poses no threat to water quality but federal EPA regulators nonetheless declared their property to contain a wetland and demanded they stop all work and restore the lot to its natural condition or pay fines of up to $75,000 per day. When they sued to challenge this order, EPA asserted they had no right to judicial review. The district court and Ninth Circuit Court of Appeals agreed, and tossed their lawsuit out of court. The United States Supreme Court unanimously reversed, ruling that failure to allow the lawsuit violated the Sacketts’ constitutional due process rights. They are now litigating their claims in federal district court in Idaho.

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