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Sackett v. EPA, the Clean Water Act and Pre-Enforcement Review: Seismic Shift or Minor Tremor?

Posted in Clean Water Act, Water Quality

Every few years, the Supreme Court issues an environmental law decision that results in the internet buzzing over its implications. The latest is Sackett v. EPA, handed down on March 20, 2012. Russell Prugh, Steve Jones and Brad Marten have authored a very detailed summary of the Sackett case, and if you are interested in reading about the gritty details, I highly suggest you take some time to read their article.

In a nutshell, the Court in Sackett allowed–for the first time–so-called “pre-enforcement review” of compliance orders issued by EPA in enforcing the Clean Water Act. Before Sackett, a party facing such an order (say, for instance, because the party allegedly filled a wetland without a permit) would have to wait until EPA sought enforcement of the order by a court to challenge the underpinnings of EPA’s enforcement decision. After Sackett, parties can go to court to challenge the validity of the order before EPA does so.

Many authors are speculating that Sackett will result in less enforcement activity by EPA with respect to the Clean Water Act. I’m not so sure this will be the case. Rather, EPA may be a bit more selective and cautious in building its administrative record to support the order. Parties that seek review of such orders in court still face the heavy burden of proving that EPA’s actions were arbitrary and capricious, a standard that is highly deferential to EPA’s decisions. And, from a practical standpoint, many of EPA’s enforcement actions involve penalties in the five digit range–so parties may make the practical decision of dedicating resources to paying the penalty and moving on in life, rather than expending those resources in legal fees. As a side note, you can get a feel for the types of enforcement actions EPA has taken using this map,; zoom in on your home state and click on some of the markers to pull up case details. So, while Sackett may seem like a seismic shift in case law interpreting the Clean Water Act now, I’d be willing to bet it will seem more like a minor tremor five years from now.