Opening The Door To EPA Challenges — But Only So Far

Originally published in Law360, New York - April 13, 2012

In its March 21, 2012, opinion in the case of Sackett v. U.S. Environmental Protection Agency (EPA), et al., No. 10-1062, 566 U.S. ___ (March 21, 2012), the U.S. Supreme Court unanimously ruled a party may bring a civil action in a federal court under the Administrative Procedure Act (APA), 5 U.S.C. § 706, to challenge the issuance of a compliance order by the EPA for a violation of the Clean Water Act (CWA).

In issuing this decision, the Supreme Court not only reversed the U.S. Court of Appeals for the Ninth Circuit's decision that the CWA itself contained an implied intent to preclude pre-enforcement judicial review of compliance orders, but it also veered from the decisions of multiple U.S. Courts of Appeals in different circuits who previously confronted the issue.

Though any lasting effects of the Sackett decision must now play out over time, from first glance, it appears the EPA may face increased burdens in its compliance-order process and many more civil lawsuits brought by cited parties.

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