The Supreme Court issued a unanimous decision in the Sackett case on March 21.  Sackett v Environmental Protection Agency, 2112 WL 932018 ( 2112).  The Court reversed the Ninth Circuit’s decision which had held that persons ordered by  EPA  to comply with the Clean Water Act, and threatened with significant penalties if they did not comply with the order, could not go to court to challenge the order until after they complied with the order.  The Sacketts had filled in a portion of their property that EPA viewed as regulated wetlands and EPA ordered them to remove the fill.  The order stated that violation of the order could be penalized by fines of up to $37,500 per day.  The Sacketts went to court to challenge the order and the lower court dismissed the claim for lack of jurisdiction.  On appeal, the Sacketts argued that the statute violates the due process clause of the Constitution because it permits the imposition of a financial penalty without a right to a hearing.  The Supreme Court reversed, holding that the Clean Water Act did not prevent judicial review of the order.

The issues framed on appeal, particularly whether the Constitution’s due process clause requires that persons subject to an order have the right to go to court to challenge the order, had broad implications for other areas of environmental law.  For example, there is a provision of the Superfund Law that creates the same situation, i.e. an order with severe penalties and no right to judicial review of the order.  Under section 106 of the Superfund Law (42 USC 9606), EPA can order a clean up and the ordered party cannot challenge that order in court until after the clean up. This has been challenged on due process grounds and the challenges have looked very much like the Sackett’s challenge to the Clean Water Act.  For example, in General Electric Co. (GE) v Jackson, 610 F.3d 110 (2010), GE challenged an order under section 106 and the Court of Appeals held that federal courts did not have jurisdiction to the challenge.  The Court of Appeals rejected GE’s due process challenge and GE’s petition for certiorari looked very much like the Sackett’s petition.   Similar arguments were made and the Supreme Court denied cert. in the GE case a short time before granting cert. in Sackett.

Those looking for relief from the threat of EPA 106 orders hoped that the Court would recognize that the imposition penalties without any right to a hearing to challenge the penalties is fundamentally unfair and a violation of due process.  The Sacketts, as individuals,  provided a more compelling case for the Court to eliminate this unfairness that a GE case would.  That is not, however, not what the Court did.  The Court wrote a decision that appears to be limited to the Clean Water Act.  The Court avoided the due process issue entirely.  Therefore, the Court’s decision does not immediately impact other areas of environmental law.

Can the Sackett decision have a broader impact?  Yes, but it will take time to develop.  The first step will probably be analysis of the wording of the Clean Water Act section that was thought to prevent court challenges and the wording of the Superfund Law provision that prevents court challenges.  To the extent that the language is analogous, it may present an avenue to expand the scope of the Sackett decision.

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