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Regulatory: A little good news for the regulated in Sackett v. EPA

Regulated parties take comfort in knowing they have an avenue for review of agency actions

In a 9-0 ruling, the U.S. Supreme Court ruled in Sackett v. EPA that the Environmental Protection Agency (EPA) had violated due process rights in an enforcement proceeding brought under the Clean Water Act. The Act prohibits “the discharge of any pollutant by any person” into a “navigable water” without a permit. Upon finding a violation, the EPA can issue a “compliance order” or file a civil enforcement action. The statute gives the EPA power to fine violators up to $35,700 per day. The EPA contends the amount doubles to $75,000 per day when the EPA prevails against a person who has been issued a compliance order but failed to comply.

In this particular case, the Sacketts owned a residential building lot near Priest Lake, Idaho. Their lot was separated from the lake by several building lots with permanent structures. In preparation for building a house on the lot, the Sacketts brought in fill dirt and rock. Some months later, they received a compliance order from the EPA under the Clean Water Act.

The Supreme Court declined to rule on the merits of the dispute, but took up the question of whether a party to such an EPA enforcement action has a right to judicial review.

Chapter 7 of the APA provides for judicial review of final agency actions. The court found that issuance of an EPA compliance order was a final agency action. The compliance order required the parties to restore their property or face significant penalties. The order also represented the “consummation” of the agency’s decision-making process. Finally the court found the parties had no other adequate remedy in a court. The parties were prohibited under the Clean Water Act from initiating any other legal proceedings.

Contributing Author

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Craig Metcalf

Craig Metcalf is a Shareholder with Kirton McConkie. His practice emphasizes intellectual property and appeals as well as mediation and arbitration. He can be reached...

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