Sackett v. EPA: Parties may challenge Clean Water Act compliance orders

Vol. 43 No. 6

Theodore Garrett is a partner of Covington & Burling LLP in Washington, D.C. and a former chair of the Section. He submitted an amicus curiae brief in Sackett v. EPA on behalf of the Competitive Enterprise Institute.

The U.S. Supreme Court issued its long-awaited decision in Sackett v. EPA, 132 S. Ct. 1367 (2012). In a unanimous decision on March 21, 2012, the Court held that the Sacketts may bring a civil action under the Administrative Procedure Act (APA) to challenge the Environmental Protection Agency’s (EPA’s) compliance order. The Court rejected the government’s argument that EPA is less likely to use orders if they are subject to judicial review, holding that “[t]he APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.”

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