Clean Water Act Orders Subject To Pre-Enforcement Review

Supreme Court decision determines that the Clean Water Act's statutory scheme does not preclude judicial review of EPA's jurisdiction in enforcement cases.

In a much-anticipated decision, Sackett v. EPA, 566 U.S. ______ (2012), the U.S. Supreme Court unanimously decided yesterday that a party may seek judicial review of the U.S. Environmental Protection Agency's (EPA's) jurisdiction to issue an administrative compliance order under the Clean Water Act before EPA enforces the order. The decision is significant because parties subject to an enforcement order under the Clean Water Act may now be able to challenge an EPA order without the risk of incurring additional daily penalties and further enforcement. Previously, EPA maintained that its order could only be challenged by waiting for enforcement to occur.