For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts.
The first is what will happen to CWA enforcement. On that score, I actually largely share Justice Alito’s view:
The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.
Unfortunately, the heavy hand of government regulation only got a little lighter as a result of this decision, and Justice Alito is absolutely correct that uncertainty about jurisdiction does not help land owners. We’re not done with post-Rapanos litigation.
The broader question of course is what happens to EPA’s authority under other statutes. It’s difficult to see how EPA’s authority under the Clean Air Act fares any better than its CWA authority. The language in the CAA is very similar – and it certainly does not contain an explicit statutory preclusion on pre-enforcement review.
CERCLA, on the other hand, likely survives, at least for now. It specifically provides that
No Federal court shall have jurisdiction … to review any order issued under section 9606(a) of this title, in any action except one of the following:
(1) An action under section 9607 of this title to recover response costs or damages or for contribution.
(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.
Analysis of whether the Clean Water Act bars judicial review of enforcement orders seems critical to the Court’s holding in Sackett. The Court specifically noted that “nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise.” The italics on “expressly” are Justice Scalia’s, not mine. One might almost conclude that those italics were provided precisely so that GE would not get too excited about renewing its challenge to CERCLA’s order authority.
Turning back to Justice Alito, his concurrence suggests that he would probably be willing to entertain a constitutional challenge. However, given the path of GE’s challenge and the unanimous decision in Sackett grounded squarely in the language of the Clean Water Act, rather than due process, I’m going to go out on a limb and suggest that it’s going to be difficult to win a challenge to EPA’s bar on preenforcement review of enforcement orders under CERCLA. Of course, stranger things have happened, so perhaps I shouldn't speculate.