In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts' constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were entitled to judicial review of EPA's order as soon as EPA issued it. It rejected the agency's arguments that the Act ought to be understood to preclude judicial review until EPA brought an enforcement action in court. In so doing, it limited the usefulness of an important EPA enforcement tool.
The Sacketts' side of the case had a number of sympathetic aspects. Two individuals were up against a big federal agency, and the agency was requiring them to remove fill and plant vegetation on their own property. It is also a case involving wetlands. As the Court pointed out in today's decision, there is significant – and ongoing – uncertainty about just which wetlands are protected by federal law. Neither the Court nor EPA has done much to clarify that.
But the decision's effect may go significantly beyond wetlands. It also may interfere with the EPA's ability to respond quickly to protect the nation's waterways from all kinds of threats, including threats we can all agree are urgent. These might include overflowing lagoons from concentrated animal feeding operations (CAFOs), malfunctioning sewage treatment plants, or the discharge of high volumes of pollutants from a factory outfall or a mine into a river. EPA is likely to be stuck in litigation over compliance orders not only in wetlands cases, but in these cases of obviously urgent threats to water quality. It may use compliance orders less often and when it does use them, it may take much longer for the orders to go into effect.
Moreover, similar, though not identical, language appears in the Clean Air Act and the Solid Waste Disposal Act. EPA is likely to face arguments about judicial review of compliance orders in these settings, too. It may be that Sackett also ultimately affects the usefulness of compliance orders to address environmental threats not only for water pollution, but from air pollution and from solid waste disposal. Congress should amend the Clean Water Act, as well as these other acts, to clarify, at least for urgent environmental threats, that judicial review of a compliance order should have to wait.
Showing 2,821 results
Nina Mendelson | March 21, 2012
In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts’ constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the […]
Sidney A. Shapiro | March 20, 2012
House GOP leaders may vote as early as this week on legislation that would eliminate the Independent Payment Advisory Board (IPAB), a cost-saving measure that was established as part of the national health care reform Congress passed in 2010. House leaders have also attached national restrictions on the right of patients to recover damages for […]
Rena Steinzor | March 20, 2012
This post was written by CPR President Rena Steinzor and CPR Policy Analyst James Goodwin. Earlier today, OIRA Administrator Cass Sunstein released a new memorandum to agencies directing them to consider and account for the “cumulative” costs of their regulations. Attacking the cumulative costs of regulation has been a favored tactic among regulated industries and […]
Sidney A. Shapiro | March 19, 2012
On Tuesday, the House Judiciary committee is marking up the Regulatory Freeze for Jobs Act (H.R. 4078), which would block virtually any “significant regulatory action”—basically, any step toward promulgating any regulation that has a large economic impact or is otherwise controversial— as long as unemployment is over 6 percent. Rather than support initiatives that actually help […]
Daniel Farber | March 12, 2012
A conventional approach to safety is based on the concept of design events. A building code might say, for example, that a building should be able to survive a 7.0 earthquake. This approach has been basic to the regulation of nuclear reactors. As the interim report of the post-Fukushima NRC task force explains: The regulation […]
James Goodwin | March 9, 2012
Inside EPA is reporting that yet another critical EPA rulemaking is now being delayed indefinitely. This time it’s the agency’s rulemaking to codify a draft guidance clarifying whether Clean Water Act protections apply to wetlands and other marginal waters. EPA had projected on its online rulemaking gateway that it expected to issue a proposed rule […]
Sidney A. Shapiro | March 8, 2012
In 1975, Indiana lawmakers joined a small but growing group of state legislatures passing aggressive medical malpractice “reforms.” Indiana’s law capped damages that victims of medical malpractice can recover at $500,000 and eliminated damages for pain-and-suffering altogether, Frank Cornelius, a lobbyist for the Insurance Institute of Indiana, played a role in helping pass this legislation. […]
| March 7, 2012
Last week, the Supreme Court heard oral argument in Kiobel v Royal Dutch Petroleum, the case asking whether corporations can be liable in federal court for violations of international human rights law. In the decision under review, the Second Circuit – unlike every other circuit court to consider the question – had held that they […]
Daniel Farber | March 7, 2012
Cross-posted from Legal Planet. The U.S. Court of Appeals for the Fifth Circuit has upheld a district court ruling that the federal government is liable for damage from the Katrina storm surge that went up the MRGO canal into the city. As I read the opinion, it is limited in three ways. First, it is […]