Today the Supreme Court hears oral argument in Sackett v. EPA, a challenge to the federal government’s claim that landowners (and other regulated entities) may not obtain pre-enforcement review of an administrative compliance order under the Clean Water Act. I previewed the case before. Here is how the WSJ reports on the case this morning:
Based on “any information”—even a newspaper article or an anonymous tip—the Environmental Protection Agency can issue an administrative compliance order directing a property owner to stop discharging pollutants or restore a damaged wetland. The government says such directives, similar to stop-work orders by local zoning inspectors, allow it to respond rapidly to prevent environmental damage.
But business groups contend that the EPA acts as a judge and jury, forcing property owners either to comply, often at great expense, or risk penalties of up to $37,500 a day if the agency later obtains a court ruling to enforce its directive.
Challengers say that by issuing compliance orders without first giving property owners a chance to contest them in court, the EPA skirts the federal law and the Fifth Amendment guarantee of due process.
The NYT editorializes on the case today as well, suggesting that the Sacketts must lose because (gasp) their position might benefit corporations.
This case goes far beyond the Sacketts’ right to fill in their lot without a permit. If the Supreme Court allows them to seek pre-enforcement review, it will be handing a big victory to corporations and developers who want to evade the requirements of the Clean Water Act.
One fact the NYT (and many commentators) ignore is that allowing pre-enforcement review of administrative compliance orders does not relieve regulated parties of the obligation to comply with such orders. Judicial review does not automatically stay enforcement of the order, so allowing regulated entities their day in court does not necessarily entail allowing them to continue to engage in allegedly polluting behavior. It does, however, prevent agencies from using enforcement leverage to force compliance with rules that may not even apply. In the Sacketts’ case, for instance, the whole question is whether their land is subject to federal regulation in the first place. Granting pre-enforcement review does not automatically entitle them to continue building their house, but it does prevent the EPA from piling on penalties before the jurisdictional question is answered.
Originally posted at The Volokh Conspiracy.