Court to Consider Administrative Compliance Orders

The Supreme Court accepted cert on two more cases on Tuesday. One of these cases, Sackett v. EPA, could be quite significant for administrative law. The case arises out of an all-too-typical wetlands regulation dispute. The Sacketts own a lot in a residential subdivision upon which they planned to build a home. After they graded the lot, they were received an Administrative Compliance Order (ACO) from the EPA alleging they had violated the Clean Water Act by filling a wetland without a federal permit and ordering them to commence costly restoration, under threat of substantial penalties. The Sackett’s sought to challenge the ACO, believing that their land does not constitute jurisdictional wetlands subject to federal regulation, but the Clean Water Act does not provide any basis for doing so absent waiting for the EPA to commence a civil action. According to the EPA, what the Sacketts could have done is applied for the permit they believe they do not need, and if their permit application was denied, then challenge the EPA’s jurisdictional determination in federal court. But this is hardly an appealing option, particularly given the substantial costs the permitting process entails. So the Sacketts filed suit in federal court, but the district court and U.S. Court of Appeals for the Ninth Circuit agreed with the EPA that the ACO was not subject to a pre-enforcement challenge.

In agreeing to hear the case, the Supreme Court accepted cert on the following two questions: 1. May petitioners seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U. S. C. §704? 2. If not, does petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause? While this case focuses on the Clean Water Act’s ACO regime, the cert grant makes clear that it will have broader application to laws that employ similar enforcement mechanisms, including the Clean Air Act and Superfund. In particular, this case could have a significant influence on regulatory enforcement, where traditional notions of Due Process often get short shrift.

Richard Frank and Holly Doremus have more on Sackett at Legal Planet, as do the folks at the Pacific Legal Foundation who brought the case.