By Russell Prugh and Adam Orford, Associates, Marten Law PLLC
In this Emerging Issues Analysis, Russell Prugh and Adam Orford of Marten Law PLLC review the oral arguments made before the U.S. Supreme Court on January 9, 2012 in Sackett v. EPA. This case, which involves "pre-enforcement review," the ability of defendants to obtain judicial review of administrative compliance orders without running the risk of penalties in an EPA enforcement action, has the potential to change EPA administrative enforcement under the Clean Water Act. The legal issue in the case is whether a pre-enforcement review bar can be implied into the CWA and-even if it can-whether an implied ban would violate the due process clause of the U.S. Constitution. A clear majority of the Court appeared more sympathetic to the plaintiff than the government, and many court-watchers have predicted that EPA may lose, opening the door to direct judicial appeals of government enforcement orders under the CWA, and perhaps other statutes.
"The CWA prohibits the discharge of fill material into wetlands without a permit under § 404 of the Act. Administration of the § 404 permit program is conducted by the United States Army Corps of Engineers (Corps), but the Corps shares enforcement authority with EPA," write Russell Prugh and Adam Orford. "When EPA determines that an unauthorized discharge has occurred, it has three enforcement options: (1) assess an administrative penalty; (2) initiate a civil enforcement action in U.S. district court; or (3) issue an administrative compliance order directing the violator to remove the discharged material. A party that fails to comply with an administrative order is potentially liable for up to $37,500 for each day of non-compliance with that order and potentially an additional $37,500 per day for the underlying CWA violation as well."
"The Sacketts own a 0.63 acre undeveloped parcel in Idaho. In 2007, they filled a portion of their property without a CWA permit. EPA determined that the fill violated the CWA because the parcel contained a jurisdictional wetland and issued an administrative compliance order requiring the Sacketts to remove the fill and restore the parcel to its original condition," explain the authors. "The Sacketts petitioned EPA for a hearing to challenge the wetland determination and, after EPA refused, filed suit in district court. EPA argued that review of an agency order was barred unless the agency first sued (which it had not) and insisted that the Sacketts comply, threatening penalties if they did not. The district court agreed, and dismissed the Sacketts' suit for lack of jurisdiction."
"The Sacketts appealed to the Ninth Circuit, arguing that: (1) the Administrative Procedure Act (APA) allows pre-enforcement review of CWA compliance orders; and (2) due process requires EPA to allow pre-enforcement review. The Ninth Circuit affirmed the district court, joining four other U.S. Circuit Courts of Appeal in concluding that the CWA impliedly barred pre-enforcement review under the APA and that the pre-enforcement bar did not violate due process," report Prugh and Orford. "The court held that pre-enforcement review would slow government enforcement and that Congress had impliedly allowed EPA the latitude to choose between filing an initial suit in district court and acting unilaterally through an administrative order. The Ninth Circuit also rejected the Sacketts' due process arguments, finding that due process was satisfied."
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). Prior to joining Marten Law Group, Russell served as a legal intern with the RCRA Enforcement Division of the Environmental Protection Agency in Washington, D.C., and a full-time intern to the Honorable John A. Dooley, Associate Justice of the Vermont Supreme Court. Following law school, Russell served as law clerk to the Honorable Patrick J. McKay, Superior Court Judge, State of Alaska.
Adam D. Orford is an associate with Marten Law PLLC. He is an advocate and counselor with experience in redevelopment and closure of contaminated sites, management of hazardous substances, acquisition, challenge and defense of state and federal air, water and waste permits, impact review of real estate development, transportation and energy infrastructure, environmental diligence in corporate acquisitions, corporate environmental disclosure, municipal planning and land use. Adam earned his J.D. from Columbia University School of Law, where he was a Stone Scholar, and served as Editor-in-Chief of the Columbia Journal of Environmental Law.
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