A case pending before the U.S. Supreme Court, Sackett v. EPA, questions whether administrative orders issued under federal environmental law should be subject to pre-enforcement judicial review.
An administrative order, which is one option that the federal government has to address violations of environmental laws, essentially commands the recipient to achieve compliance. It is a particularly efficient enforcement mechanism since there is no pre-enforcement judicial review. Consequently, the recipient of an administrative order may have a difficult decision: Comply with the order even if they believe it is based upon a questionable interpretation of the facts or law, or refuse to comply and face additional penalties if a court in agrees with the EPA in a subsequent action seeking to enforce the order.
The Sacketts filled less than an acre of a wetland without obtaining the required federal permit, and the EPA issued an administrative order under the Clean Water Act. The Sacketts’ pre-enforcement challenge in federal court was dismissed, and the Ninth Circuit Court of Appeals affirmed, agreeing that the administrative order was not subject to pre-enforcement judicial review.
The Supreme Court will hear the case to determine two questions: 1) whether pre-enforcement judicial review is available under the Administrative Procedure Act and 2) if not, whether denying the Sacketts access to the courts before the EPA seeks to enforce the order violates due process. A decision in favor of the Sacketts on either question could dramatically change the administrative order as an enforcement tool under the federal environmental laws. Argument is scheduled for January 9, 2012, with a decision anticipated by no later than next summer.