Academic journal article
By Ferlo, Albert; Lindley, Tom
Environmental Law , Vol. 42, No. 4
I. INTRODUCTION AND SHORT SUMMARY
The Supreme Court's recent decision in Sackett v. Environmental Protection Agency, (1) is already generating significant speculation. Other writers have begun discussing the decision's theoretical and scholarly aspects; we write to discuss its practical impacts. In this Essay, we draw on our diverse legal backgrounds: one attorney with many years of defending clients against agency orders, and one attorney with many years of enforcing agency orders--both now in private practice and frequently advising clients on the practical benefits and costs of whether to challenge an agency order or to cave-in to the order to avoid other costs. We do not write to suggest whether the Court's decision in Sackett was proper or improper; rather, we write simply to discuss the practical effects of this decision "in the streets," that is, how it is likely to be used or not used in real disputes. Although we come from different perspectives, we both conclude that, in practice, Sackett will provide clients with a new but limited decision pivot point: whether to incur the delays, costs, and risks involved in filing an early challenge to an agency decision, or to proceed in light of an agency order that--while onerous or even without clear merit--nevertheless promises a quick and relatively inexpensive path to completion of a project. Further, that decision may now include both: 1) the presence of a more complete record, and 2) more listening by and input from seasoned staff. Developed records and better listening open the door to real, rather than dictated, agreements--agreements that can be reached before any pre-enforcement hearing ever occurs.
II. APPLICABILITY BEYOND 33 U.S.C. section 1344?
The applicability of Sackett beyond section 404 of the federal Clean Water Act (CWA) remains an open question. (2) As Justice Ginsberg stated in her concurrence:
The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the [Environmental Protection Agency (EPA)]'s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today's opinion does not reach out to resolve. (3)
Given those limits, and the fact that the Supreme Court's decision did not address other statutes, much of the ultimate importance of Sackett will depend upon its interpretation and use by future courts.
III. JURISDICTION UNDER THE APA: FINALITY, RIPENESS, AND EXHAUSTION
The requirement that a federal court's jurisdiction to review agency actions extends only to "final" decisions is deeply embedded in federal jurisprudence. The final decision requirement starts with the Administrative Procedure Act (APA), (4) which expressly states that judicial review is limited to "final agency action for which there is no other adequate remedy in a court." (5) While this language seems to present a fairly simple concept, federal courts have struggled for decades to determine what constitutes a "final" agency action for purposes of judicial review under the APA. (6) Two other jurisdictional requirements are often considered together with finality: ripeness and exhaustion of administrative remedies. Indeed, some courts can agree that jurisdiction does not exist, but cannot agree as to whether jurisdiction is lacking based on the absence of a final judgment, because the issue before them is not ripe, or because plaintiffs have failed to exhaust administrative remedies. (7) Sackett, however, focuses solely on the finality requirement.
The Sackett decision is, in many ways, simply the latest affirmation by the Supreme Court that a court's jurisdiction under the APA extends only to final agency action. …