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Steptoe & Johnson: Supreme Court Sides With Landowner In EPA Order Challenge

By Amy M. Smith 

On March 21, 2012, the United States Supreme Court decided Sackett v. Environmental Protection Agency, No. 10-1062 [enhanced version available to subscribers]. The Court held that individuals may bring a civil action under Chapter 7 of the Administrative Procedure Act, 5 U.S.C. § 704, to challenge an administrative compliance order issued by the Environmental Protection Agency under Section 309 of the Clean Water Act. 33 U.S.C. § 1319.

In that case, the compliance order asserted that the individual plaintiffs violated the Clean Water Act by placing fill material on their residential property located near a lake and directed them immediately to restore the property pursuant to an EPA work plan. The Court reasoned that the compliance order was a final agency action for which there is no adequate remedy other than review under the APA, and that the Clean Water Act does not preclude such review.

Although not noted in the decision, every circuit that previously had confronted this issue had held that the Clean Water Act impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court. Justice Scalia delivered the opinion for a unanimous Court. Justices Ginsburg and Alito filed concurring opinions. Click here to read the opinions.  

Amy M. Smith practices in litigation, concentrating on appellate, business, energy and class action litigation.