December 03, 2013 Articles

Sackett v. EPA: Shifting the Administrative Calculus

Comparing the U.S. EPA's and Illinois EPA's approaches to judicial review of compliance orders.

By Kenneth Anspach – December 3, 2013

In the U.S. Supreme Court’s recent decision in Sackett v. Environmental Protection Agency,132 S. Ct. 1367, 182 L. Ed. 2d 367 (2012), the Court held that a person who had been issued an administrative order directing compliance with section 309(a)(3) of the federal Clean Water Act, 33 U.S.C. § 1319(A)(3), can challenge that order pursuant to section 704 of the federal Administrative Procedure Act, 5 U.S.C.S. § 704. Commentators on the ruling have stated that “the decision is a victory for individual rights not only because it establishes the right of judicial review for compliance orders, but also because it reduces the incentive for agencies to adopt cavalier positions when threatening individuals with ruinous fines.” Damien M. Schiff & Luke A. Wake, “Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach,” 17 Tex. Rev. L. & Pol. 97.

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