LEGAL NEWSLINE

WASHINGTON (Legal Newsline) -- The United States Supreme Court unanimously has ruled that "compliance orders" of the Environmental Protection Agency can be reviewed by the courts.

Some are praising the Wednesday opinion as limiting the power of a rogue government entity.

The court rejected the Obama administration's contention that judicial review is prohibited. It also reversed, once again, a Ninth Circuit Court of Appeals ruling affirming that the EPA's order cannot be challenged.

The Ninth Circuit is the most reversed Appeals court in the country and is considered the most liberal.

Sackett v. EPA involved limiting the government's powers to enforce the Clean Water Act. The 9-0 ruling said citizens sue the EPA to challenge an order to stop an activity that it says violates the CWA. People have a right, within the scope of the Administrative Procedure Act to sue immediately at the time they choose and not have to wait until the EPA sues them.

An Idaho couple, the Sacketts, own land near a lake. They intended to build a house there. But they received a compliance order from the EPA, which claimed that their property included navigable waters - which are protected by the CWA - and that their building would pollute the nation's waters. The order directed them to immediately repristinate the lot. Noncompliance would result in daily fines of about $75,000 per day.

The Sacketts maintain that their property is not subject to the CWA. They requested the EPA for a hearing, but that was denied. They next took the EPA to Federal Dis­trict Court, contending that the compliance order was "arbitrary [and] capricious" and violated the APA. They also claimed the order deprived them of their Fifth Amendment right of due process.

The District Court dismissed the suit "for want of subject-matter jurisdiction." The Ninth Circuit af­firmed. It concluded that the CWA "precluded pre­enforcement judicial review of compliance orders and that such pre­clusion did not violate due process."

Justice Antonin Scalia, writing the opinion, said, "Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise ... 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-even judicial review of the question whether the regulated party is within the EPA's jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity."

The Court concluded that the EPA's compliance order in this case is eligible for APA review and that the CWA does not prohibit review. The Ninth Circuit's judgment was reversed and the case remanded.

Many have hailed the Court's ruling as affirming citizen's rights to due process. Even those who say they normally do not concur with Justice Antonin Scalia approved of the opinion.

Richard Frank, director of the University of California-Davis School of Law's California Environmental Law & Policy Center, wrote in Legal Planet the environmental law blog of the law schools of UCLA and Univ. of California, Berkeley concurred with the Court. He wrote, "... my own opinion is that Scalia and the Court got this one right. The Sackett decision's statutory analysis seems compelling, and the equities of this particular David-and-Goliath saga fall rather strikingly in favor of the Sacketts. I don't often find myself in agreement with Justice Scalia, but I confess that I do here."

Many organizations filed amicus briefs in favor of the Sacketts. Among them were the U.S. Chamber of Commerce, the Competitive Enterprise Institute and the American Civil Rights Union. The Natural Resources Defense Council and the Idaho Conservation League filed amicus briefs in favor of the EPA.

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