Two of my CPR Member Scholar colleagues, Nina Mendelson and Holly Doremus have done a first-rate job of previewing and analyzing the oral argument in Sackett v. EPA – a case now awaiting decision by the U.S. Supreme Court.
I fully share Professor Doremus's hope that, even if the case results in a loss for the government, the Supreme Court's decision in Sackett will not be decided on constitutional grounds and will be limited in its impact to the Clean Water Act. At the same time, however, I am less sanguine than she is about the potential that exists for even a relatively narrow decision to damage EPA's underfunded and overstressed enforcement effort.
It is a little known fact – but it is a fact – that the collective resources of EPA and the states have simply not been able to keep up with the challenges of enforcing Clean Water Act requirements. The governments' portfolio of water pollution threats has evolved from visible discharges from factories and sewage treatment plants to include hundreds of thousands of sources of mining wastes, industrial and municipal storm water runoff, spills of sewage from aging sewer systems, and agricultural runoff. In recent years, the NPDES permit system has drastically expanded in scope. As EPA's 2009 "Clean Water Act Enforcement Action Plan" candidly acknowledged: "The sheer magnitude of the expanding universe of the NPDES program itself, from roughly 100,000 traditional point sources to nearly a million sources...presents challenges in how we regulate and enforce the laws of this country."
At the same time, however, the resources available to EPA and the states to meet these challenges have been considerably diminished. EPA's budget has nominally "plateaued" since the mid-1990s. However, the Agency's statutory responsibilities have grown and (until recently) it has had to pay its employees salary increases mandated annually by Congress – a situation that has gradually, but significantly, reduced the funds available to EPA for its regulatory and enforcement work.
The possibility that EPA will lose the use of a frequently-used enforcement tool must be viewed in this context of administrative scarcity. In contrast with federal civil enforcement lawsuits – which require a very significant expenditure of resources by EPA and the Department of Justice – administrative compliance orders can be handled by the Agency efficiently and entirely in-house. I think Malcolm Stewart, the Deputy Solicitor General who argued the case did a disservice when he said that “I would assume that any prosecutor, any enforcement person, would want to be better prepared when a case actually went to trial than when he was communicating to the potential defendant that there’s a real likelihood that we would sue you.” In fact, EPA's regional offices typically take considerable care to assure that administrative orders are never issued to parties who are not actually violating applicable environmental standards. Supervisors in those offices often emphasize to their staffs that staff members’ professional reputations are at stake whenever they draft documents that contain findings of violation, and that, in that context, mistakes will not be tolerated. Moreover, the issuance of administrative orders has the benefit of establishing a viable "enforcement presence" and deterring future violations among a wide variety of polluting industries and municipalities.
My concern is that a Supreme Court decision entitling regulated parties to pre-enforcement judicial review of EPA administrative orders will put the Agency at a great disadvantage in negotiating compliance orders with water polluters. Although not all parties who receive an EPA enforcement order would challenge that order in court, it would not take a vast number of petitions for judicial review of administrative orders to bog down federal water pollution control enforcement (by EPA and the also-shorthanded Department of Justice) quite considerably. While EPA might resort to "warning letters" to Clean Water Act violators if its ability to use administrative orders is impaired by the Sackett decision, my own sense is that that violators who receive administrative orders are considerably more likely to perceive that the Agency is serious about taking vigorous action against them if their noncompliance continues than will recipients of warning letters. Much would certainly depend upon how such letters are worded. Nonetheless, I am skeptical that even firmly worded letters would have the same deterrent benefit to EPA (and by extension to the general public) as administrative compliance orders presently have.
I certainly hope that my pessimism about the future impact of the Supreme Court's forthcoming decision in Sackett v. EPA will turn out to be misplaced, and that Holly Doremus will turn out to be right (as she so often is) that the case will ultimately be viewed as "much ado about not much." At this point, however, I remain concerned that the highest Court's opinion in this case may remove a very significant tool from EPA's Clean Water Act enforcement tool chest at a time when the Agency faces mounting enforcement challenges and our Nation's waters seem farther than ever from achieving the "chemical, physical and biological integrity" that the Clean Water Act calls for.