Sackett v. EPA: One Year Later

Now that the Pacific Legal Foundation has won another big property rights victory with the Koontz decision, it seems appropriate to return to last year's Sackett decision, which PLF also argued. Recall that, in Sackett , the U.S. Supreme Court held that landowners could bring a civil action to challenge a compliance order under the Administrative Procedure Act. In doing so, the Court decided that regulatory efficiency doesn't trump everything.

In a timely article, Russell Prugh at Marten Law has taken a look at the decisions decided under Sackett since that case came down. He writes:

What one finds from reviewing these early cases is that:

1. They are fact-specific;
2. They are not limited to the CWA;
3. They turn on the court’s finding of whether the action challenged was “final”; and
4. Whether the agency action is deemed final turns on whether the court sees it “just a step in the deliberative process” or as leaving nothing left to do but to refer the case to a government lawyer to enforce.

And he concludes:

The theme that emerges from the early cases interpreting Sackett is that courts have focused on a case-by-case analysis of whether the agency action challenged subjects the complainant to enforcement, or rather is simply a step in the decision-making process. The answer is often not clear, and different trial courts could go either way, adding uncertainty to the outcome of any challenged action. Courts are most apt to allow pre-enforcement review in cases factually similar to Sackett – cases involving administrative enforcement orders under the CWA. See Hardesty. But the core holding in Sackett could also find a place in challenges to other types of agency action, even outside the environmental context, as it did in Furie. As cases such as Furie demonstrate, the key inquiry continues to be whether the action challenged is “just another step in the deliberative process” or whether the only action left to be taken is government enforcement.

As a matter of fact, as another blogger points out, EPA has recognized that Sackett applies to a wide variety of cases:

EPA has now formally acknowledged that the Sackett decision has implications for other statutes. In a memorandum dated March 21, 2013, EPA’s Office of Enforcement and Compliance Assurance has concluded that it is important to advise recipients of EPA unilateral orders under other programs of their opportunity to seek pre-enforcement judicial review of such orders.

In particular, EPA has directed enforcement staff to immediately begin adding the following language to typical unilateral orders under FIFRA, Clean Air Act, Safe Drinking Water Act and EPCRA: “Respondent may seek federal judicial review of the Order pursuant to [insert applicable statutory provision providing for judicial review of final agency action.]”

The foregoing language applies, inter alia, to stop sale, use or removal orders under FIFRA §13, stop work or compliance orders under Clean Air Act §§113(a) and 167, and emergency and compliance orders under EPCRA §§ 325(a).

With respect to compliance and corrective action orders under RCRA §§3008(a), 3008(h), 9003(h) and 9006(a), EPA’s Memorandum directs enforcement staff to include language advising respondents that they may seek administrative review in accordance with 40 CFR Part 22 or 24 as applicable.

EPA’s March 21, 2013 Memorandum states that EPA believes that the reasoning in Sackett does not lead EPA to believe that similar language is appropriate for unilateral orders issued under statutory authorities other than those discussed in the Memorandum, and it is noteworthy that the EPA Memorandum makes no reference to unilateral orders under CERCLA.

This is good news for landowners facing all sorts of environmental enforcement actions by EPA.

Changes in Environmental Law to Watch for in President Obama's Second Term

In an interesting series of articles, attorneys on the West Coast have been writing about the changes to watch for in environmental law in the under President Obama's second term administration. The articles include:

• A summary of air, energy, water, natural resources, and waste policy change:

The Obama Administration is expected to advance major changes to energy and environmental laws in the next four years. There is already a backlog of pending legislation and proposed regulation to work through, and both environmental and industry groups will press for major reforms.

• A detailed look at changes in air quality rules:

Now that the election is over, EPA is expected to begin moving forward a crowded air docket, including greenhouse gas standards for utilities and refineries, updates to ambient air quality standards for particulate matter and ozone, and several rules that are being rewritten in response to legal challenges. Utilities, refineries, and operators of industrial boilers will all face new requirements specific to their source categories, as well as potential for further constraints due to more stringent, generally applicable ambient air quality standards. Final action on the first of these rules is expected before the end of 2012.

• A overview of the future of energy policy:

The first Obama administration saw many proposals, but few final actions on new federal regulation of oil and gas production. That pattern appears likely to change in the President’s second administration. The boom in oil and gas production is creating a counter-boom in litigation aimed at stopping or limiting development, and both industry and environmentalists are pressing their case as to the role the federal government should play in an era of greater energy abundance.  

• A discussion considering why waste policy may be a bigger issue than considered at first glance:

Compared with some other items on the Obama Administration’s second term agenda, hazardous waste and chemicals regulation is not as likely to be seen as an area of significant change. That’s a mistake. A number of issues are percolating at or just below the surface of the Administration’s regulatory priorities in this area that may bring significant change over the next four years.

Each issue discussed will not necessarily affect every landowner, but the takeaway here is that we could see some significant changes to our federal environmental laws and regulations over the next four years.