Posted on March 29, 2012 by Zach C. Miller
As Ted Garrett reported in his recent blog, the Supreme Court has issued its long-awaited decision in Sackett v. EPA. Not surprisingly (based on the questions asked at oral argument), the Court unanimously reversed the Ninth Circuit and ruled that the recipient of an administrative compliance order to restore wetlands under Section 404 of the federal Clean Water Act (CWA) can challenge that order in court under the APA. The Court soundly rejected the Government’s argument and the Ninth Circuit’s conclusion that the CWA implicitly precludes “pre enforcement” judicial review of such orders.
In addition to that important ruling, this decision is noteworthy for what it did not do. Even more pointedly, the decision highlights the enormous underlying problem of uncertainty about the scope of waters regulated by the CWA, which remains untouched and unfixed by this opinion.
One of the important issues not addressed by the Sackett decision is the constitutional due process argument made by the plaintiffs that precluding judicial review of such orders is unfair and unlawful. The decision simply says that the CWA itself does not preclude judicial review, so the right to review of this final agency action is presumed under the APA. As a result, it left for another day whether other statutes (like CERCLA § 113(h)) that expressly preclude pre-enforcement judicial review would pass constitutional muster.
Second, it did not expressly address whether a party can judicially challenge any aspect of an administrative order, or can only make the basic “jurisdictional challenge” regarding whether the agency in fact has regulatory authority over the subject property or persons. Justice Ginsburg, in her concurring opinion, states that the decision only addresses the jurisdictional issue and leaves the question of whether other types of challenges can be brought “open for another day and case.” It remains to be seen whether EPA and the lower courts will adopt this narrow reading of the decision.
Third, the opinion emphasizes the clear finality of the administrative order at issue in the Sackett case as a basis for APA judicial review. It remains to be seen whether an agency order or ruling subject to some additional agency appeal, review or deliberative process, no matter how futile or fore-ordained, would be considered a “final agency action”. It also remains to be seen whether EPA and other agencies will attempt to address and undercut this “finality” factor by creating post-order administrative processes that delay or frustrate judicial review.
Finally, while some will trumpet this as a great victory for the regulated community, Justice Alito’s concurring opinion got it right in saying that this “decision provides a modest measure of relief”, but the huge underlying problem reflected by this dispute is the “hopelessly indeterminate” scope of “waters of the United States” regulated under the CWA, which this decision does nothing to alleviate or address. As a result, while a tiny fraction of regulated persons may now choose to challenge an administrative compliance order in court, the very significant cost of doing so, and the low chance of success combined with the draconian and mounting penalties resulting from a failed challenge, will still leave nearly all regulated persons (in Justice Alito’s words) “with little practical alternative but to dance to the EPA’s tune.”
The bottom-line is that allowing regulated persons to sue in these circumstances (again in Justice Alito’s words) is “better than nothing,” but the underlying regulatory morass will not be fixed unless and until Congress or EPA and the Corps develop a clear, appropriate and formal delineation of waters regulated by the CWA. The informal “Jurisdictional Guidance” floated last year by EPA and reportedly now parked at the White House, if adopted, would worsen rather than resolve this uncertainty. After 40 years, it’s time to fix this mess and pass a clear law or rule on the reach of the Clean Water Act.