September 10, 2012 Articles

EPA Compliance Orders Subject to Immediate Judicial Review

Compliance orders on construction projects are now subject to immediate challenge, giving clients and attorneys new options when faced with possible fines.

by Logan A. Hollobaugh

On March 21, 2012, the U.S. Supreme Court issued a unanimous ruling in Sackett v. U.S. Environmental Protection Agency, 566 U.S. ___ (2012). The Court held that the Clean Water Act (CWA) is subject to the Administrative Procedure Act (APA), 5 U.S.C. §§ 706, appeals process for rulings by federal agencies, including compliance orders issued by the U.S. Environmental Protection Agency (EPA).

The case arose from a compliance order issued to an Idaho couple who had initiated site work on their property, on which they planned to build a house. The EPA determined that the couple’s property, which was adjacent to a lake, was subject to the CWA and issued the order requiring the land owners to restore the property to its original condition. After being denied a hearing by the EPA, the landowners filed suit and eventually appealed the case to the Supreme Court.

As noted, the Supreme Court held that EPA compliance orders may be challenged in civil actions brought under the APA. The Court’s holding was based on its findings that an EPA compliance order is a final agency action for purposes of the APA and that landowners have no other adequate remedy available to them absent this APA-based right of review. Accordingly, the Court reversed the Ninth Circuit’s ruling that the court lacked subject-matter jurisdiction to review landowner challenges to EPA compliance orders.

It is immediately clear that this decision will have an impact on property owners, as well as the construction and environmental lawyers who counsel them.

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