Regulatory Relations in Light of Sackett v. EPA

Vol. 27 No. 1

Mr. Andreasen is of Counsel at Shook, Hardy & Bacon L.L.P., and a member of the editorial board of Natural Resoures & Environment.

The recent Supreme Court decision in Sackett v. EPA, 132 S. Ct. 1367 (2012) may herald a significant change in environmental enforcement, potentially making subject to immediate judicial review many administrative actions previously considered unappealable. Sackett likely will be at least somewhat familiar to most readers. There, a unanimous Supreme Court made appeals of U.S. Environmental Protection Agency (EPA) enforcement orders available under the Clean Water Act (CWA) far sooner than any prior court. The Sackett analysis may apply to orders under other federal environmental statutes, including the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act (CAA). Sackett, in effect, announces a potential sea change in EPA enforcement of the CWA, and possibly of other federal environmental statutes. It is reasonable to expect recipients of EPA enforcement orders to challenge, where appropriate, the scope of EPA authority, including its jurisdiction under the terms of the statute it seeks to enforce.

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