Wednesday, March 21, 2012

Sackett v. EPA (10-1062) Unanimous Decision!

No. 10–1062. Argued January 9, 2012—Decided March 21, 2012

The Clean Water Act prohibits “the discharge of any pollutant by any person,” 33 U. S. C. §1311, without a permit, into “navigable waters,” §1344. Upon determining that a violation has occurred, the Environmental Protection Agency (EPA) may either issue a compliance order or initiate a civil enforcement action. §1319(a)(3). The resulting civil penalty may not “exceed [$37,500] per day for each violation.” §1319(d). The Government contends that the amount doubles to $75,000 when the EPA prevails against a person who has been issued a compliance order but has failed to comply. 

The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. The Sacketts sought declarative and injunctive relief in the Federal District Court, contending that the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it deprived them of due process in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The Ninth Circuit affirmed, concluding that the Clean Water Act precluded pre-enforcement judicial review of compliance orders and that such preclusion did not violate due process. 

Held: The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order. Pp. 4–10. 

 Scalia, J., delivered the opinion for a unanimous Court. Ginsburg, J., and Alito, J., filed concurring opinions. 

Read the opinion here.

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