Will Sackett Impact the USEPA's Regulation of Hydraulic Fracking?


On March 21, 2012, the U.S. Supreme Court handed down a decision that clarified the U.S. Environmental Protection Agency's (USEPA) administrative enforcement authority. The decision, Sackett, et al. v. EPA, et al. (Docket 10-1062), held that parties subject to an Administrative Compliance Order (ACO) under 33 U.S.C. section 1319 of the Clean Water Act (CWA) are entitled to seek pre-enforcement review under the Administrative Procedures Act (APA). The decision, while framed in the context of the CWA, may impact the USEPA's use of its administrative authority under section 1431 of the Safe Drinking Water Act (SDWA) to regulate hydraulic fracking.

The Court, in a 9-0 decision, gave property owners the right to sue the USEPA and immediately challenge ACOs. In Sackett, the USEPA issued an ACO requiring the Sacketts to remove fill they placed on their property during the process of developing the property and building a house. The USEPA had determined that the fill violated the CWA because the property included a wetland subject to CWA jurisdiction. The Sacketts petitioned the USEPA for a hearing to challenge the wetland determination and, after the USEPA denied their petition, the Sacketts filed suit in U.S. District Court. The USEPA took the position that its order was not subject to review unless it first sued the Sacketts, which it had not, and demanded the Sacketts comply with the ACO or face penalties of $37,500 per day for violating the ACO and $37,500 per day for violating the CWA.

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