Sackett v. EPA: Supreme Court Authorizes Pre-Enforcement Review of Clean Water Act Compliance

A unanimous Supreme Court held, on March 21, 2012, that parties who receive administrative compliance orders from the U.S. Environmental Protection Agency ("EPA") under the authority of the federal Clean Water Act are entitled to "pre-enforcement review," that is, they may bring lawsuits to challenge the jurisdictional basis for such orders in court. When EPA determines that a person is discharging a pollutant into the "waters of the United States" without a permit, the Clean Water Act requires EPA either to issue a compliance order or to file a lawsuit to enforce the Act's requirements. Compliance orders have become a preferred tool for EPA to obtain quick remediation through "voluntary compliance." Parties who questioned the government's assertion of federal jurisdiction over their property either had to obey the government's compliance order, thereby losing the benefits of their ownership of their land, or refuse to comply, thereby risking ruinous liability for penalties of up to $37,500 per day if EPA decided to sue and the court decided that the government had properly asserted federal jurisdiction.