Originally published June 28, 2011
Keywords: Clean Water Act, pre-enforcement, due process clause
Today the Supreme Court granted certiorari in one case of interest to the business community:
Clean Water Act—Pre-Enforcement Review—Due Process
The Administrative Procedure Act ("APA") provides for judicial review of "agency action made reviewable by statute and final agency action." 5 U.S.C. § 704. Agency action is not reviewable, however, where the relevant statute "preclude[s] judicial review." 5 U.S.C. § 701(a)(1). The Supreme Court granted certiorari today in Sackett v. Environmental Protection Agency, No. 10-1062, to determine (1) whether pre-enforcement judicial review of an administrative compliance order issued pursuant to the Clean Water Act ("CWA"), 33 U.S.C. § 1319(a)(3), is available under Section 704 of the APA; and (2) if not, whether the lack of pre-enforcement review violates the Due Process Clause.
Because compliance orders subject property owners to substantial costs and delays, which pre-enforcement review might mitigate, the Court's resolution of this case could prove significant for all businesses that seek to develop lands potentially subject to the CWA.
Petitioners, the plaintiffs below, purchased an undeveloped lot on which they planned to build a house. In preparation for construction, they filled a portion of the property with dirt and rock. Although they had received all the necessary building permits from local authorities, the EPA issued a compliance order, alleging that the property is a wetland subject to the CWA. The order required the petitioners to return the property to its original condition, and exposed them to potential penalties of up to $32,500 per day for each violation of the order. After the EPA denied their request for a hearing, in which they sought to challenge the finding that their property is subject to the CWA, the petitioners sought injunctive and declaratory relief in federal district court.
The district court dismissed the suit for lack of subject-matter jurisdiction. The Ninth Circuit affirmed, joining the Fourth, Sixth, Seventh, and Tenth Circuits in holding that the CWA impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court. The Ninth Circuit also held that the preclusion of pre-enforcement review of CWA compliance orders does not violate due process.
Absent extensions, which are likely, amicus briefs in support of the petitioners will be due on August 19, 2011, and amicus briefs in support of the respondents will be due on September 19, 2011.
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Andrew Pincus, an appellate partner at Mayer Brown who argued three cases in the Supreme Court this Term, has been asked to testify on Wednesday, June 29, before the U.S. Senate Judiciary Committee on the question of "How the Supreme Court's Recent Rulings Will Affect Corporate Behavior." A copy of Mr. Pincus' statement is available here.
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