Recipients of environmental compliance orders may now seek
judicial review if they disagree with the Environmental Protection
Agency's (EPA) assertion of authority over their
property. Reversing decades of lower court decisions denying
"pre-enforcement" review of EPA administrative orders,
the Supreme Court unanimously ruled last week in Sackett v.
EPA, No. 10-1062, 2012 WL 932018 (U.S. Mar. 21, 2012), that
the Clean Water Act does not preclude judicial review of an
administrative compliance order issued by the EPA.
What Does This Mean for Clients?
Administrative enforcement of environmental statutes is
widespread. While Sackett addressed only the Clean Water Act,
similar administrative orders are issued under other federal
environmental statutes. It is likely the Court's
reasoning would extend to other environmental laws, where the
statute itself does not expressly prohibit pre-enforcement review
and there is no administrative hearing available.
