Academic journal article
By Mintz, Joel A.
Environmental Law , Vol. 42, No. 4
The U.S. Supreme Court's long-awaited decision in Sackett u. U.S. Environmental Protection Agency, (1) summarized earlier in this collection of Essays, creates at least as many uncertainties as it resolves unsettled issues of law. In this Essay, I will identify a significant subset of those uncertainties and suggest an alternative analysis that the Court might have adopted in Sackett that would have harmonized the purposes of both the Clean Water Act (CWA) (2) and the Administrative Procedure Act (APA) (3) with an important, though infrequently cited, directive of the National Environmental Policy Act (NEPA). (4)
In Part II of this Essay, I will discuss the nature and practical significance of the U.S. Environmental Protection Agency (EPA or the Agency) administrative compliance orders (ACOs) within the panoply of enforcement tools generally available to EPA enforcement officials. In Part III, I will focus on the legal principles, if any, that the Supreme Court's opinion in Sackett has established as a matter of stare decisis. Among other things, this Part will touch upon the extent to which the analysis presented by Justice Antonin Scalia in the Sackett case may have been intended to apply to Clean Water Act ACOs that do not include determinations of the federal government's authority to regulate particular wetlands, or even to be applicable to the enforcement provisions of other important federal environmental laws. Finally, in Part IV, I will discuss how the application of section 102(1) of NEPA (5) (also known as the NEPA interpretation mandate)--which the Court did not mention in Sackett (6)--might have yielded quite a different result in that case, while providing greater clarity as to the scope and meaning of the Sackett decision.
II. THE NATURE AND SIGNIFICANCE OF EPA ADMINISTRATIVE COMPLIANCE ORDERS
While the enforcement provisions of the federal pollution control legislation implemented by EPA vary in detail from statute to statute, nearly all such provisions allow the Agency to make use of one or more enforcement mechanisms--often likened to tools in a tool chest--to redress violations of applicable statutory and regulatory requirements. Among those mechanisms is administrative enforcement, a generic term that covers a variety of enforcement techniques which environmental agencies are typically authorized to implement, on their own, to compel compliance with environmental standards or to collect monetary penalties from environmental law violators. Administrative enforcement measures, which vary considerably in their nature, stringency, and consequences, typically include notices of violation, (7) administrative compliance orders (8) (like the one at issue in Sackett), administrative penalty assessment orders, (9) emergency orders, (10) and field citations. (11)
In addition to administrative enforcement, EPA and other administrative agencies are also empowered to make use of a significant additional set of enforcement mechanisms. Thus, EPA has the authority to initiate civil judicial enforcement actions in U.S. District Courts, (12) to refer particular cases to the U.S. Department of Justice (DO J) for criminal prosecution, (13) to intervene as a party in civil enforcement cases initiated by private citizen plaintiffs, (14) and under certain limited circumstances, to prohibit all federal agencies from entering into a contract with any person convicted of violating the Clean Water Act or the Clean Air Act. (15) At the same time, however, administrative enforcement remains a vital tool for EPA and other environmental enforcement agencies and represents a large proportion of all EPA enforcement activity. For example, in 2001, over 80% of the Agency's enforcement actions were administrative actions) (16) There are several reasons for this enforcement pattern. First, as Sheldon Novick has aptly observed, if they are used effectively, administrative orders "provide a quick, responsive, and flexible enforcement tool, particularly well-suited to remedying less egregious violations. …