One would have thought that the Supreme Court’s unanimous decision holding that landowners have a right to sue EPA when the agency issues Clean Water Act compliance orders would have led to some soul-searching at EPA. At the very least, one might have expected some initial acknowledgement that maybe the enforcement practice should change.
Not so, at least says one senior EPA official who, appearing at a wetlands conference last week, stated that he did not expect to “see dramatic shifts in how administration enforcement authority is used.” He also noted that the pace of issuance of compliance orders has not changed; in fact, EPA has issued over 2,000 Clean Water Act compliance orders over the past several years.
Not only is EPA’s pooh-poohing of the Sackett decison surprising, it also seems to be somewhat in tension with what the agency argued in litigating the case, particularly that judicial review of compliance orders would pose a significant administrative burden on the agency that would hamper environmental enforcement. Based on this EPA official’s estimation, it appears that the agency’s fears were overblown.