On March 21, 2012, Justice Scalia authored a unanimous U.S. Supreme Court decision about the ability to seek judicial review of EPA decisions under the Clean Water Act.  In Sackett v. EPA, the Court does not actually decide the merits because the issue before the Court includes only whether and when a court may hear a case challenging an EPA compliance order.  Nevertheless, the Court takes the opportunity to provide a nice overview of the Clean Water Act, including a discussion of the recent case law regarding the definition of “navigable waters,” which begins with the 1985 Riverview Bayside case and continues through the 2001 Solid Waste Agency of Northern Cook County (SWANCC) case to the 2006 Rapanos case. 

The Clean Water Act prohibits discharges of any pollutant into navigable waters without a permit.  Defining navigable waters, however, has always been a critical part of Clean Water Act litigation.  The three cases mentioned above have all attempted to provide guidance regarding the definition, but have really only muddied the waters.  As Justice Scalia notes in Sackett, the Chief Justice was concerned that the Rapanos would leave interested parties without a clear understanding of navigable waters and would force them to feel their way on a case-by-case basis.  That is precisely what Justice Scalia fears is happening in Sackett.

The Sacketts are a couple of private landowners who were cited by the EPA for putting fill material in wetlands on their property that the EPA defined as being adjacent to navigable waters and, therefor, subject to the Clean Water Act.  The Sacketts maintain that their property is not subject to the Act.  When the Agency denied them a hearing, they sought relief in federal district court.  Both the district court and the court of appeals concluded that the Clean Water Act precludes judicial review of compliance orders.

The Supreme Court disagreed.  In his opinion, Justice Scalia reasons that the compliance order is a final agency action and that the Sacketts do not have an adequate remedy unless they are allowed to seek judicial review of the compliance order because they are incurring significant financial penalties while waiting to see whether they will be granted a permit from the Army Corps of Engineers.

While this opinion has significant implications for CWA cases, it is also an important case regarding judicial review of agency actions in general, affirming the principle that the Administrative Procedures Act creates a rebuttable presumption in favor of judicial review.

While Justice Scalia has provided an interesting and entertaining opinion, perhaps the best part of the decision is Justice Alito’s concurrence, in which he reveals the depths of his hatred of the Clean Water Act and calls upon Congress to do its job and amend the Act to provide reasonable definitions for the scope of the Act’s jurisdiction.  The picture painted by Alito is one in which rogue EPA employees harass innocent landowners by unreasonably applying the Clean Water Act to them and slapping them with “draconian” fines if they do not comply with arbitrary orders.  Although anyone working in this field would probably support more clarify regarding the scope of the Act, Justice Alito seems uniquely distrustful of the individuals hired to enforce the Clean Water Act.

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This entry was posted on Wednesday, May 23rd, 2012 at 9:51 pm and is filed under Case Note, Environment. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.