On June 28, 2011, the Supreme Court granted a petition for a writ of certiorari to review a Clean Water Act (CWA) ruling issued by the Ninth Circuit. The Supreme Court’s review will be limited to the following questions: 1) whether the petitioners may seek pre-enforcement judicial review under the Administrative Procedure Act (APA) of an administrative compliance order issued by EPA under the CWA; and 2) if the petitioners are precluded from seeking pre-enforcement judicial review, are their constitutional due process rights violated?

The case arose out of a compliance order issued by EPA against Chantell and Michael Sackett, owners of an undeveloped property that they filled in to construct a house. In the compliance order, EPA alleged that the parcel contained wetlands subject to the CWA, and the Sacketts had therefore violated the CWA by placing fill material onto their property without a permit. The Sacketts sought a hearing with EPA to challenge its order, which was not granted. The Sacketts then filed an action in federal district court seeking injunctive and declaratory relief under the APA, which provides for judicial review of a final agency action, unless the relevant statute precludes judicial review. The district court determined it did not have jurisdiction to hear the Sacketts’ claims because the CWA precludes judicial review of administrative compliance orders prior to EPA bringing an enforcement action. The Ninth Circuit agreed, as have all other circuit courts that have considered the issue. The Ninth Circuit held that the CWA evinces a legislative intent to preclude pre-enforcement judicial review of administrative compliance orders.

Earlier in June, the Supreme Court denied a certiorari petition by GE that sought to challenge the constitutionality of unilateral administrative orders issued under CERCLA. GE raised many of the same constitutional arguments against its inability to seek pre-enforcement judicial review of administrative orders as the Sacketts have raised. However, unlike CERCLA, which expressly prohibits pre-enforcement judicial review of administrative compliance orders, the CWA is silent on this issue. If the Supreme Court rules for the petitioners, the availability of judicial review under the CWA and potentially other statutes will be greatly expanded, and EPA’s current ability to mandate compliance without initiating enforcement actions will be curbed significantly. We will continue to monitor this case as it proceeds before the Supreme Court.