In Sackett, the Supreme Court ruled that EPA
could not issue enforcement orders under the Clean Water Act
without allowing the subjects of the order the right to bring a
pre-enforcement challenge to such orders under the Administrative
Procedure Act. Now, in
Ron Foster v. EPA, Judge John Copenhaver of the Southern
District of West Virginia has ruled that Sackett's victory was
in fact hollow, and that the due process rights of subjects of
EPA's enforcement orders are only satisfied:
if some form of hearing [occurs] before an individual is finally
deprived of a property interest.
In short, Judge Copenhaver concluded that the practical import
of an EPA enforcement order, by paralyzing the subject's
business and threatening massive civil penalties, is such that it
constitutes a deprivation of property, which provides a basis for a
due process claim. He next concluded that the remedy identified in
Sackett, judicial review under the APA, is not sufficient
to
