After Sackett: What Next for Administrative Compliance Orders?

Earlier this week, the U.S. Supreme Court handed down its much-anticipated decision in Sackett v. Environmental Protection Agency. In a unanimous decision--key features of which are summarized in a thoughtful post by Nina Mendelson--the Court held that the plaintiff landowner had a right to challenge the Clean Water Act administrative compliance order (ACO) which EPA had issued to it under the Administrative Procedure Act. The Court's opinion is narrowly drawn--in some ways, perhaps, an immediate benefit to EPA and other agencies who regularly issue administrative orders to enforce environmental statutes. At the same time, however, the Sackett decision raises troubling questions regarding the future direction of the law in this area, along with potentially vexing practical difficulties for EPA's enforcement program.

The case certainly could have come out worse. The Supreme Court's opinion avoided all of the plaintiff's constitutional claims, and it contained no discussion of the applicability of its holding to the ACO provisions of other environmental statutes. The decision was remarkably free of rhetorical excess. Moreover, as Justice Ginsberg pointed out in her concurrence, the Court's opinion did not reach the question of whether pre-enforcement judicial review is available to parties who challenge the terms and conditions of ACOs issued under the Clean Water Act. Thus, it is possible that the Sackett decision will be narrowly viewed, in the lower courts, as applying only to challenges to the EPA's jurisdictional authority under the Act--and perhaps only to challenges to EPA assertions that particular parcels of property are "waters of the United States," within the meaning of that statutory phrase.

At the same time, however, the very narrowness of the decision leaves the future of ACOs--a useful and important tool to compel broad compliance with important environmental requirements--very much in doubt. In the wake of Sackett, future judicial challenges to ACOs issued under the Clean Air Act, the Resource Conservation and Recovery Act, the Superfund statute and other federal environmental statutes seem certain to follow. The Court's decision in this case gives little hint as to how they may be resolved.  

Moreover, for the reasons I expressed in this space  after the case was argued, I fear that this decision will create significant practical difficulties for EPA's enforcement staff. While not all parties who have received Clean Water Act ACOs from EPA will challenge them in court, enough of those entities seem likely to do so that the Agency may largely abandon that mechanism for securing compliance with the statute. In that event, the Agency will be compelled to choose between ignoring a known violation, issuing a warning letter--which, I worry, will have only a minimal impact on a number of Clean Water Act violators--or referring its case to the (also short-staffed) Department of Justice for civil judicial enforcement. The last of these approaches is time-consuming and resource-intensive for all concerned.

Whatever the merits of the Sackett decision, I don’t see it bringing the United States any closer to achieving the "chemical, physical and biological integrity of the Nation's waters" that is the objective of the Clean Water Act.