U.S. Supreme Court Allows Pre-Enforcement Judicial Review of Federal Agency Compliance Orders – Sackett v. EPA



On March 21, 2012 the Supreme Court of the United States came down with a major decision involving federal jurisdiction and access to federal courts in Sackett v. EPA. The Court held that a party who is the subject of a United States Environmental Protection Agency (“EPA”) Clean Water Act (“CWA”) compliance order need not wait for EPA to commence an enforcement action before bringing a challenge to the order.

The plaintiffs owned a residential lot several lots away from a lake. In connection with development, the property owners filled in a portion of the lot. EPA made a finding that the property owners had discharged a pollutant without a permit in violation of the CWA by filling land containing wetlands. EPA issued a compliance order (“Order) requiring that the property owners restore the land.

The property owner disputed the existence of wetlands and sought to challenge the Order by requesting a hearing before the agency. That request was denied. The property owners then challenged the Order in federal court; however, the trial court dismissed the complaint, ruling that the claim was premature because EPA had not sought to enforce the Order in an action of its own.

The Supreme reversed the lower court and held that the Order was a “final order,” immediate reviewable in court. The Court held that while the property owners waited for EPA to commence (or not commence) its own enforcement action, substantial penalties of up to $75,000 per day were accruing, and the property owners therefore otherwise had no control over when the Order might become reviewable by a court. Thus, unless the property owner could bring an action in federal court, the agency’s findings were not subject to any review.

This decision supports an important right of a party under proper circumstances to challenge an agency action without being forced to wait for the agency itself to commence its own enforcement case.

Daniel L. Schmutter is member of Hartman & Winnicki, P.C. and practices in the firm’s Litigation Department. He can be contacted at dschmutter@hartmanwinnicki.com.