Sackett v. EPA: Does The Constitution Mandate The Ability To Challenge An EPA Order Pre-Enforcement?

The United States Supreme Court may soon decide a question of due process under the Clean Water Act (CWA) which has broader implications for the way EPA enforces the nation's environmental laws. The question is whether the Fourteenth Amendment requires that a landowner be able to challenge an EPA compliance order in court before EPA seeks to enforce that order. Oral argument in Sackett v. EPA is scheduled for January 9 and at last count 14 amici briefs have been filed and 10 states have weighed in. Because other environmental statutes, such as the federal Superfund statute, also bar pre-enforcement review of EPA orders, the Supreme Court's decision could materially affect EPA's future enforcement strategies.