Addressing an issue of first impression in the circuit, the Ninth Circuit Court of Appeals has upheld the ban on pre-enforcement judicial review of Clean Water Act (CWA) administrative orders in cases in which EPA has not sought to enforce the order in court. Sacke H v. EPA, No. 08-35854 (9th Cir. 9/17/10). The case was initiated in November 2007, when EPA issued a CWA compliance order to plaintiffs alleging that they violated the CWA by filling wetlands on their property without a permit.  

Plaintiffs then filed a lawsuit in a federal district court in Idaho seeking injunctive and declaratory relief. They challenged the compliance order as (i) arbitrary and capricious under the Administrative Procedure Act, (ii) issued without a hearing in violation of due process, and (iii) issued on the basis of an “any information available” standard that is unconstitutionally vague. The district court granted EPA’s motion to dismiss, and plaintiffs appealed.  

Agreeing with the district court and the other circuits that have considered the matter, the appeals court held that the CWA precludes judicial review of compliance orders before EPA has started an enforcement action in federal court. The court reasoned that the CWA requires that penalties for violating a compliance order be assessed only after EPA proves the noncompliance. According to the court, “[u]nder these circumstances, preclusion of pre-enforcement judicial review does not violate [plaintiff’s] due process rights.”