The United States Supreme Court has accepted certiorari (cert) in a case that may have ramifications for the Agency’s ongoing initiative to use the Safe Drinking Water Act’s (SDWA) emergency authority to regulate fracking. The issue in Sackett v. EPA, which the Court agreed last week to hear next term, centers on whether the Sacketts—who filled in a half acre of their property near Priest Lake, Idaho with dirt and rock—have a due process right to pre-enforcement review of an EPA-compliance order under Section 404 of the Clean Water Act (dredge and fill permit requirement). The compliance order prevented further construction and required the Sacketts to restore the wetland.
The case comes to the court with several layers of notable context over and above any implications for fracking. First, the Court recently declined to address a similar issue—due process rights to pre-enforcement review of an EPA CERCLA § 106 order—when it denied cert in the closely watched General Electric v. Jackson case. If the Court really wanted to decide the due process issue, it could have accepted cert in the GE case (although EPA’s emergency CERCLA authority is arguably different from a compliance order under the CWA). This has prompted speculation that the Court has an ulterior motive. And that is the Court’s ongoing vexation with EPA’s jurisdiction over wetlands. The 2006 decision in Rapanos v. U.S., saw the conservative wing of the Court, led by Justice Scalia, adopt a very narrow view of EPA’s jurisdiction over wetlands. EPA has since grappled with how to regulate wetlands. Accepting Sackett may have as much to do with the Court’s concern with this issue, as anything else—particularly because EPA's alleged expansive definition of wetlands in Sackett has arguably led to property right infringement.
More to the point of this blog, however, are the potential implications for fracking posed by a decision in Sackett. As covered previously in this blog, Range Resources is currently making a similar due process claim under the SDWA, arguing that the statute’s judicial review scheme is unconstitutional if it is not construed to require EPA to prove liability prior to enforcement. Range relies primarily on the Ninth Circuit’s reasoning in Sackett to argue that an enforcement order, whether it be a CWA § 404 compliance order or a SDWA emergency order, does not, without more, impose penalties or legal obligations absent enforcement proceedings in court. Given the centrality of Sackett to Range’s case, Range (and the rest of the industry) should be encouraged that the Court has agreed to decide a very similar issue (although pre-enforcement review of EPA's emergency authority under the SDWA is more in line with CERCLA § 106, which the court declined to hear). It is possible that Range will now move for a stay before the Fifth Circuit pending the Supreme Court’s decision. On one hand, a delay may mean that Range potentially continues to incur penalties for non-compliance with the emergency order. On the other hand, a lengthy stay could take the wind out of EPA’s sails in its ongoing efforts to use the SDWA’s emergency authority to regulate fracking operations. Regardless, the decision in Sackett will be one to closely watch for a variety of reasons, the regulation of fracking being one.