Sackett v. EPA

The Clean Water Act (“CWA”) does not expressly provide for judicial review of EPA compliance orders under the Administrative Procedure Act ("APA"). The Sacketts argue that there is a presumption in favor of judicial review, and that Congress didn't intend to preclude judicial review in cases like theirs. In contrast, the EPA asserts that allowing pre-enforcement judicial review would hinder CWA enforcement processes. The Sacketts argue that, if they cannot obtain judicial review under the APA, their procedural due process rights will have been violated because the EPA compliance order deprived them of fundamental rights without an opportunity for meaningful review. However, the EPA maintains that compliance orders do not add or detract from a recipient's pre-order legal rights and obligations under the CWA. Instead, the EPA maintains that the CWA provides adequate procedural safeguards to protect the Sacketts from the imposition of non-compliance penalties without some sort of plenary review.

Pre-Enforcement Judicial Review under the Administrative Procedure Act

The Sacketts assert that the CWA does not preclude them from seeking judicial review of the compliance order issued by the EPA. See Brief for Petitioners, Chantell and Michael Sackett at 33. The Sacketts argue that Congress intended judicial review to be available under the APA because no intent to preclude such review is "fairly discernible" from the statute itself. See id. at 33–34. Under the APA, pre-enforcement judicial review is available for final agency actions that determine legal rights or obligations, or from which legal consequences flow. See id. at 54.

The Sacketts argue that pre-enforcement judicial review should be available for an EPA compliance order. See id.The Sacketts maintain that a compliance order constitutes "final agency action" because there are no further processes associated with it. See id. at 55. The Sacketts argue that the EPA's issuance of the order is the final result of the agency's processes, and represents the end of administrative process. See id. at 55. The Sacketts argue that, like an injunction, the compliance order imposes severe civil penalties for non-compliance; they maintain that the order itself creates legal consequences and determines legal rights. See id. at 39, 55.

However, the EPA asserts that compliance orders are not final agency action. See Brief for Respondent at 24. The EPA maintains that, to constitute a final agency action, an action "must mark the consummation of the agency's decisionmaking process . . . [and] the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Seeid. (citations omitted). The EPA argues that, because recipients can still consult with the EPA and propose alternative solutions to alleged violations, a compliance order cannot be characterized as final agency action. See id. at 24–25. Additionally, the EPA argues that a compliance order does not impose new legal obligations. Seeid. at 27–28. The EPA contends that a compliance order merely articulates the legal obligations imposed by the CWA. See id. at 28–29. The EPA acknowledges that a compliance order could impose penalty fees on the Sacketts if they refuse to comply, or could complicate the process of getting an after-the-fact permit; however, the EPA maintains that the Sacketts would only have to pay non-compliance penalties if a court finds an actual violation of the CWA has occurred. See id. at 30–31.

The Sacketts assert that Congress intended compliance orders to be subject to judicial review under the APA. See Brief for Petitioners at 33. The Sacketts acknowledge that some administrative orders are not subject to judicial review; however, they assert that EPA compliance orders are different because, unlike unreviewable administrative orders, compliance orders are not based on the discretion of a government actor. See id. at 40. Because the CWA does not provide for any agency review under the CWA, the Sacketts assert that Congress must have intended judicial review to be available under the APA; prohibiting any review would be a violation of due process. See id.at 38–40. Additionally, the Sacketts note that Congress modeled the CWA structure and enforcement procedure after the Clean Air Act, which courts have interpreted to enable judicial review of compliance orders. See id at 42, 49 The Sacketts argue that, by analogy, compliance orders issued under the similarly structured CWA should be subject to judicial review. See id.

The EPA, on the other hand, argues that Congress created the enforcement process for the CWA in an effort to make it more efficient, and created compliance orders to provide a means to avoid judicial action through voluntary compliance. See Brief for Respondent at 39–40. Therefore, the EPA argues that subjecting compliance orders to judicial review would undermine the intent of conserving judicial resources at this stage in the enforcement process. See id. at 39. Moreover, the EPA challenges the Sacketts' analogy between the CWA and Clean Air Act (and other environmental statutes); the EPA argues that Congressional amendments of those statutes do not indicate that Congress intended to permit judicial review of compliance orders under the CWA. See id. at 41.

Due Process Rights

The Sacketts assert that a denial of judicial review of the compliance order violates their due process rights because they will have been deprived of fundamental rights with no opportunity for meaningful judicial review. See Brief for Petitioners at 17, 19. The Sacketts assert that the EPA compliance order has violated their right to exclude others from their property and to be safe from unreasonable searches, and has deprived them of the only economically viable use of their property. See id. at 17–19. The Sacketts contend that these rights have been violated without an opportunity for meaningful judicial review. See id. at 20–21.

The Sacketts argue that, under a test laid out by the Supreme Court in Federal Deposit Insurance Corporation v. Mallen, the lack of a post-order hearing is a violation of due process. See Brief for Petitioners at 20–21. The Court in Mallen laid out two factors for determining the justifiable length of delay in reviewing a deprivation of property rights: the importance of the property interest, and the harm to that interest caused by the delay. See Federal Deposit Insurance Corp. v. Mallen, 486 U.S. 230, 242 (1988). Arguing that the private interest in their land is significant, and that the harm caused by delay is grave, the Sacketts conclude that the lack of a post-order hearing violates due process. See Brief for Petitioners at 20–21. Additionally, the Sacketts contend that there are no adequate opportunities for review under the CWA, if such review can only be triggered by EPA enforcement action following a refusal to comply with the compliance order. See id. at 23–24.

The EPA asserts that issuing a compliance order does not add or detract from any legal rights already possessed by the Sacketts under the CWA; the compliance order does not determine what uses of land are permissible under the CWA. See Brief for Respondent at 45. Instead, the EPA maintains that any deprivation would occur only after judicial review in an enforcement action.See id. at 28–30. The EPA argues that, if a court were to find that the property is not subject to the CWA, the compliance order would not be valid, and there would be no requirement to remediate the land or pay non-compliance fees; if, on the other hand, the property is subject to the CWA, the obligations arose under the CWA and were merely expressed through the compliance order. See id. at 30. Additionally, the EPA notes that, in Thunder Basin Coal Company v. Reich, the Supreme Court held that statutes imposing non-compliance fines are constitutional as long as they do not impose penalties automatically. See id. at 48; Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 218 (1994). The EPA maintains that, because the compliance order is not self-executing and is subject to various types of review, the Sacketts did not suffer an unconstitutional deprivation. See id. at 48–49.

The EPA maintains that pre-enforcement judicial review is unnecessary because the CWA provides for review before the recipients of a compliance order must pay any fees. See Brief for Respondent at 49. The EPA notes that penalties are only imposed after plenary review of the allegations and a judicial determination that there has been a CWA violation. See id.. The EPA also notes that judges have discretion to decide the amount of penalties, and can take into account any "good faith" efforts on the part of petitioners. See id. at 49–50. The EPA notes that the Sacketts had the opportunity to seek an after-the-fact permit or attempt to modify the compliance order through consultation with the EPA. See id.at 50, 51. Finally, the EPA points out that the Sacketts are responsible for their difficulties because they neglected to apply for a permit before beginning the construction that is the subject of the alleged CWA violation. See id. at 52.

The Sacketts reject the argument that sufficient safeguards exist under the CWA, asserting that neither the judicial oversight of a later enforcement action nor the permitting process provide meaningful review. See Brief for Petitioner at 29. The Sacketts note that an adjustment of civil penalties for non-compliance depends on a judge's mercy, and that even a 99% reduction in their four year penalty would still leave over $500,000 in civil penalties, a large monetary burden for individuals like the Sacketts. See id. at 30. Moreover, the Sacketts argue that, even if they were able to apply for a permit despite the unresolved compliance order, challenging the denial of an after-the-fact permit would not allow them to challenge the compliance order itself. See id. The Sacketts also assert that applying for a permit would be so expensive that the costs would outweigh the value of the proposed homebuilding. See id.