Supreme Court Rules that U.S. EPA Unilateral Compliance Orders Under the Clean Water Act Are Final Actions Judicially Reviewable


In Sackett et vir v. Environmental Protection Agency, the United States Supreme Court held unanimously that a compliance order issued under §309(a)(3) of the Clean Water Act2 is “final action” that is subject to judicial review under the Administrative Procedure Act.

The Sacketts owned a lot in a residential development on which they wished to build a house. Their lot was several parcels distant from a lake. In preparation for construction, they filled in part of their lot with dirt and rock. Some months later, they received a compliance order from EPA. It was “unilateral,” i.e., there had been no opportunity for the Sacketts to have a hearing before it was issued. The order found that their lot contained wetlands and directed them immediately to restore the site in accordance with EPA criteria. The Sacketts asked for a hearing, but EPA refused to hold one. The Sacketts then filed suit in federal district court seeking review under the APA of the threshold question of whether their lot had wetlands that were subject to EPA’s jurisdiction. They also claimed that EPA’s unilateral action was a deprivation of property without due process of law. The district court dismissed the suit. The Ninth Circuit Court of Appeals affirmed, holding that the Clean Water Act precluded judicial review of compliance orders and that the preclusion did not violate the Fifth Amendment’s guarantee of due process. The Supreme Court granted certiorari and reversed.

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