Jump to Navigation
Jump to Content

Preenforcement Judicial Review After Sackett: Implications Beyond the Clean Water Act

September 2012

Citation: ELR 10818

Author: Julia E. Stein, Tiffany R. Hedgpeth, and Nancy M. Wilms

On March 21, 2012, the U.S. Supreme Court decided the Clean Water Act (CWA) case Sackett v. Environmental Protection Agency. The Sacketts were private property owners in Idaho who had dredged and filled a portion of their property for future construction. As the property was near a navigable lake, the U.S. Environmental Protection Agency (EPA) asserted the Sacketts were in violation of §311 of the CWA, and issued a compliance order (Order) obligating the Sacketts to remove the fill or be subject to penalties of up to $75,000 per day for each day of noncompliance. The Sacketts contended their property was not subject to the CWA and filed suit in district court, claiming the court had jurisdiction to hear the case even though EPA had not commenced enforcement proceedings against them. Although both the district court and the U.S. Court of Appeals for the Ninth Circuit disagreed, the Supreme Court overturned those rulings, holding 9-0 that the district court did in fact have jurisdiction to consider the Sacketts’ claim that their property was not subject to the CWA. Though lower courts had consistently held the CWA to “impliedly” preclude preenforcement judicial review of a compliance order, the Supreme Court here allowed for such review, and the implications of this decision may have a ripple effect far beyond the reaches of the CWA. This Article explores the possible impact of the Sackett decision beyond the CWA to other key environmental statutes.

Julia E. Stein, Environmental Litigation Associate, Bingham McCutchen LLP. Tiffany R. Hedgpeth, Environmental Litigation Partner, Bingham McCutchen LLP. Nancy M. Wilms, Environmental Litigation Partner, Bingham McCutchen LLP.

You must be a News & Analysis subscriber to download the full article.

You are not logged in. To access this content: