Supreme Court Docket Report - June 28, 2011

Originally published June 28, 2011

Keywords: Clean Water Act, pre-enforcement, due process clause

Today the Supreme Court granted certiorari in one case of interest to the business community:

Clean Water Act—Pre-Enforcement Review—Due Process

The Administrative Procedure Act ("APA") provides for judicial review of "agency action made reviewable by statute and final agency action." 5 U.S.C. § 704. Agency action is not reviewable, however, where the relevant statute "preclude[s] judicial review." 5 U.S.C. § 701(a)(1). The Supreme Court granted certiorari today in Sackett v. Environmental Protection Agency, No. 10-1062, to determine (1) whether pre-enforcement judicial review of an administrative compliance order issued pursuant to the Clean Water Act ("CWA"), 33 U.S.C. § 1319(a)(3), is available under Section 704 of the APA; and (2) if not, whether the lack of pre-enforcement review violates the Due Process Clause.