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After <i>Tennessee Valley Authority v. Whitman</i>: Should Courts Be More Receptive to Preenforcement Review of EPA Administrative Orders?

September 2005

Citation: ELR 10612

Author: Mark Latham

Editors' Summary: Administrative orders are one of the most potent enforcement mechanisms that EPA has at its disposal. Yet the vast majority of courts, under a variety of federal environmental statutes, has held that there is no preenforcement judicial review of such orders. According to the author, EPA has therefore been free to allege serious violations of environmental regulatory programs, threaten the imposition of costly penalties, require recipients to incur significant costs to achieve compliance with an order, and threaten criminal prosecution--all without an adjudication of the alleged factual and legal basis underlying the order. After looking at the reasoning behind this lack of judicial review, the author examines a recent case in which a court found that there were fundamental, constitutional questions raised by the broad powers granted to EPA through the administrative order process. In that case, the court ruled that EPA must first establish the existence of a violation in district court before imposing any penalties. The author then provides some alternatives to the administrative order process, concluding that EPA's ability to promptly challenge instances of noncompliance with federal environmental statutes and regulations would not end were courts to find that the administrative order process failed to pass constitutional muster.

Mark Latham is an Assistant Professor of Law at the Vermont Law School in South Royalton, Vermont, and is Of Counsel with the Environmental Practice Group at Gardner Carton & Douglas LLP, in Chicago, Illinois. He is a member of the Illinois Bar. He received his B.S.N. at Illinois Wesleyan University (1979) and his J.D. at University of California at Berkeley (Boalt Hall) (1989).

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