Sackett v. EPA

The The U.S. Supreme Court ruled in March 2012 that administrative orders (AOs) issued under the Clean Water Act (CWA) are subjected to pre-enforcement judicial review, scoring an important victory for NACWA and the municipal clean water community.  The Court’s decision in Sackett v. EPA, which was much-anticipated and issued by a unanimous court with all nine justices agreeing, echoes arguments made by NACWA and a coalition of organizations in a brief to the Court encouraging pre-enforcement judicial review of AOs.  Although the underlying facts of the case dealt specifically with an AO involving CWA Section 404, the decision impacts all federal AOs issued under the CWA, including orders issued by the Environmental Protection Agency (EPA) to municipal clean water agencies under CWA Section 402 National Pollutant Discharge Elimination System (NPDES) permits.

The court’s opinion, authored by Justice Scalia, explicitly states that the CWA does not preclude judicial review of AOs under the Administrative Procedure Act (APA).  The Court also found that the AO issued in this particular case clearly qualified as “final agency action” eligible for judicial review under the APA, setting a very strong precedent to argue that other EPA CWA administrative compliance orders qualify as final agency action as well.  In making its decision, the Court poignantly noted that “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”  This serves as a strong rebuke to EPA and some environmental activist groups, which had argued that the CWA prevents such review.  The court also noted that, despite EPA claims to the contrary, AOs would still remain an effective means of promoting voluntary compliance when there is no “substantial basis to question their validity.”  However, if the regulated party does have concerns with the underlying reasons for the order, pre-enforcement judicial review is now an option.

NACWA joined with a number of other organizations in November, including the Wet Weather Partnership, the City of New York, and a number of state wastewater associations, to file a brief with the Supreme Court supporting the petitioners in this case.  The Court’s decision mirrors many of the augments made in that brief, including that the CWA does not in any way prohibit pre-enforcement judicial review of AOs.

• Ninth Circuit Decision , 09/17/2010
• Petitioners’ Opening Brief to U.S. Supreme Court , 09/26/2011
• Municipal Amicus Brief to U.S. Supreme Court , 09/29/2011
• U.S. Supreme Court Opinion , 03/21/2012