Not a Lexis+ subscriber? Try it out for free.


Marten Law PLLC Analyzes Chantell Sackett v. EPA: Scalia and Unanimous Supreme Court Uphold Pre-Enforcement Review in Wetlands Case Under Clean Water Act

Steve Jones and Russell Prugh and Brad Marten   By Steve Jones, Russell Prugh and Brad Marten of Marten Law PLLC

In this Emerging Issues Analysis, Steve Jones, Russell Prugh and Brad Marten of Marten Law PLLC discuss the U.S. Supreme Court's unanimous decision in Sackett v. EPA, striking down EPA's ban on "pre-enforcement review" of administrative compliance orders issued under the Clean Water Act. Along with a full analysis of the case, the authors provide insight into the implications of the decision.

Excerpt from the Commentary:

"In a decision handed down on March 21, 2012, Justice Antonin Scalia found it easy to give Mike and Chantelle Sackett their day in court. Writing for a unanimous Supreme Court in the case of Sackett v. EPA, Justice Scalia said that the EPA could not find that the Sackets had illegally filled wetlands on their property, order them to remove the fill, and then threaten them with penalties without allowing them to appeal the order. The outcome in the case had been widely predicted based on the sympathetic plight of the plaintiffs, which had moved the case into the mainstream media and the stump speeches of presidential candidates. When due process allows a driver to appeal a parking ticket before paying it, providing the Sacketts the opportunity to seek judicial review of EPA's administrative enforcement order without having to wait for EPA to first sue them was not much of a stretch.

However, as with most environmental cases decided by the Supreme Court, the impact of the Sackett decision is not that simple and sure to be hotly debated. As with the high court's 2006 plurality decision in Rapanos v. United States regarding the reach of Clean Water Act (CWA) jurisdiction and the Court's 2009 decision in Burlington Northern & Santa Fe Railway Co. v. United States on divisibility under CERCLA, the devil is in the details and there is much left to be determined as the decision plays itself out.

In Sackett, the Supreme Court struck down EPA's ban on "pre-enforcement review" under the CWA, finding that an administrative compliance order issued by EPA is "final" for purposes of judicial review under the Administrative Procedure Act (APA) and that nothing in the CWA bars a party from filing suit to challenge such an order before EPA initiates a judicial enforcement action. While Sackett likely does not affect orders issued under CERCLA, which contains an explicit pre-enforcement bar, parties will almost certainly argue that Sackett allows pre-enforcement review under statutes without explicit pre-enforcement bars, such as the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act (CAA)."

Podcast Available
You can also listen to a new Podcast with Bradley Marten on the Sackett v. EPA decision.
LexisNexis® Environmental Law and Climate Change Community Podcast:  Brad Marten on the U.S. Supreme Court Decision in Sackett v. EPA. Mr. Marten, the Managing Partner of Marten Law in Seattle, explains the background of the case and how it may be viewed both narrowly and broadly. subscribers can access the complete commentary, Marten Law on Sackett v. EPA: Unanimous Supreme Court Allows Pre-Enforcement Review Under Clean Water Act. Additional fees may be incurred. (approx. 16 pages).

If you do not have a ID, you can purchase this commentary on the LexisNexis Store or you can access this commentary and additional Environmental Law Emerging Issues Commentaries on the Store. subscribers can access the complete set of Emerging Issues Analysis for Environmental Law.

Steven Jones, a partner with Marten Law PLLC, is the chair of the firm's litigation department. He has handled complex environmental and land use litigation for both public and private clients for 15 years. Steve has particular expertise in litigation arising under CERCLA, the Clean Water Act, the Federal Torts Claim Act and representing clients in litigation involving climate change, solid waste and nuisance issues. He also has extensive experience litigating land use issues under both SEPA and Washington's Growth Management Act. Steve has handled cases before all levels of the state and federal courts, along with administrative litigation before Washington's Pollution Control Hearings Board, the Growth Management Hearings Boards and Washington's Utilities and Transportation Commission.

Russell Prugh is an associate at Marten Law PLLC's Seattle office. Russell's practice focuses on environmental and natural resources litigation and environmental permitting for facilities and projects in the Pacific Northwest and Alaska. Russell has particular experience with stormwater compliance issues and in litigation arising under the Clean Water Act, CERCLA, MTCA, and other federal and state environmental laws. Russell earned his Juris Doctor, summa cum laude, from Vermont Law School, where he served as a National Moot Court Competition team member and as a managing editor of the Vermont Law Review. He received his Bachelor of Arts in Natural Resources from the University of the South (Sewanee).

Bradley M. Marten is the Managing Partner of Marten Law. He is consistently ranked by his peers as one of the nation's top environmental lawyers. Brad is President of the American College of Environmental Lawyers. Brad is principal environmental counsel to over two dozen companies and also represents local governments and NGOs. He has worked with clients in nearly every sector of the economy across the country, including manufacturing, refining, transportation, food processing, agricultural, remediation, real estate, and financial services companies. He represented the State of Alaska in the Exxon Valdez oil spill litigation.

Duck at Wetland Pond subscribers can access the Lexis enhanced version of the Supreme Court decision in Sackett v. EPA, 2012 U.S. LEXIS 2320 (U.S. Mar. 21, 2012) with summary, headnotes, and Shepard's. subscribers can obtain all of the briefs filed in the Supreme Court in Sackett v. EPA, 2012 U.S. LEXIS 2320 (U.S. Mar. 21, 2012). subscribers can access the transcript of the Oral Arguments before the Supreme Court in Sackett v. EPA, 2012 U.S. LEXIS 2320 (U.S. Mar. 21, 2012). subscribers can access the Lexis enhanced Ninth Circuit decision in Sackett v. United States EPA, 622 F.3d 1139 (9th Cir. Idaho 2010) with summary, headnotes, and Shepard's.

For more information about LexisNexis products and solutions connect with us through our corporate site.