Sackett: The Road Forward

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I. INTRODUCTION

On March 21 of this year, the Supreme Court unanimously held in Sackett v. U.S. Environmental Protection Agency (1) that the recipients of a compliance order issued under section 309(a) of the Clean Water Act (CWA) (2) were entitled to pre-enforcement review on the question whether the U.S. Environmental Protection Agency (EPA) had properly asserted jurisdiction over their property. While the decision overruled two decades worth of unanimous precedent from the federal courts of appeals, (3) in the end the result was unsurprising to those who had watched the issue for years, and particularly to those who had read the briefing or followed the oral argument. (4)

The real question is what this means. In this brief Essay, I will first summarize the case, including its facts and lower court history, in addition to the Supreme Court opinion and the attendant concurrences. With that background, I will say a few words about four important, related questions that I expect the courts will have to work out in the wake of Sackett. That accomplished, I will speculate as to how EPA likely will respond to Sackett and suggest that, seen in this light, the decision is likely in the short run to negatively impact EPA's ability to induce compliance, but perhaps not disastrously so. And finally, I will offer another pathway that EPA could take that has the potential of turning the decision into a blessing in disguise.

II. FACTUAL BACKGROUND AND LOWER COURT HISTORY

Chantell and Michael Sackett own a 0.63-acre parcel of land near Priest Lake, in northern Idaho. (5) Although their property was damp, in April and May of 2007 the Sacketts began filling it in without first seeking a jurisdictional determination from the U.S. Army Corps of Engineers (Corps). (6) Altogether, they filled in approximately one-half acre of their lot. (7)

Within three days of when the Sacketts began their filling activities, EPA showed up, and asked the equipment operators who were engaged in the filling to stop operating if the Sacketts did not have a permit under section 404 of the CWA. (8) In response, the Sacketts hired a consultant to determine whether their land constituted jurisdictional wetlands under the CWA; this consultant determined both that the property was a wetland and that it was not an "isolated wetland." (9) Despite this, the Sacketts made no effort to apply for an "after-the-fact" permit from the Corps; instead, Chanteli Sackett appeared to continue to believe that the property constituted an isolated wetland. (10)

In the face of the Sacketts' inaction, EPA issued them a compliance order in November of 2007. (11) This order reflected EPA's determination that the relevant area qualified as a wetland within the meaning of 33 C.F.R. [section] 328.4(8)(b), and that the relevant wetland was "adjacent" to Priest Lake, within the meaning of 33 C.F.R. [section] 328.4(8)(c). (12) The order required the Sacketts to restore the relevant site in accordance with an EPA-approved plan. (13) It further informed them that they would be subject to penalties of up to $32,500 per day of violation if they did not meet the order's terms, (14) but also invited them to "engage in informal discussion[s]" with EPA if they believed any of its allegations to be inaccurate. (15)

The Sacketts waited more than four months before they contacted EPA, on April 1, 2008. When they did, they requested a formal hearing. In accordance with its long-established practice, EPA denied this request. (16) The Sacketts then filed a judicial challenge in the United States District Court for the District of Idaho, seeking injunctive and declaratory relief. They argued that the order was arbitrary and capricious under the Administrative Procedure Act (APA); (17) they also argued that it violated their due process rights. (18) The district court granted EPA's motion to dismiss, determining that the CWA precluded pre-enforcement review of EPA's orders. …