Supreme Court strikes down EPA’s ban on “pre-enforcement review” under the Clean Water Act

In a unanimous opinion released last week, the U.S. Supreme Court rejected the EPA’s ban on “pre-enforcement review” under the Clean Water Act. The decision in Sackett v. EPA, authored by Justice Scalia, holds that the EPA’s administrative compliance orders are “final” for purposes of judicial review under the Administrative Procedure Act and that nothing in the Clean Water Act bars a party from filing suit to challenge the order before EPA initiates a judicial enforcement action. The ruling addresses the difficult situation a landowner would face when the EPA alleges that a wetland on the property has been illegally filled and orders removal of the fill (under threat of penalties) without allowing the property owner to appeal the order. While some commentators have expressed concern that the ruling will chill EPA’s Clean Water Act enforcement, judicial review of agency orders that can subject a property owner to fines is only fair. For more details on the decision, check out Professor William Funk’s analysis on the RegBlog.