{
  "id": "R42450",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R42450",
  "active": false,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 403774,
      "date": "2012-03-26",
      "retrieved": "2016-05-24T19:45:20.476941",
      "title": "The Supreme Court Allows Pre-enforcement Review of Clean Water Act Section 404 Compliance Orders: Sackett v. EPA",
      "summary": "On March 21, 2012, the Supreme Court resolved a long-simmering issue of federal environmental enforcement. The issue in Sackett v. Environmental Protection Agency involved the \u201cadministrative compliance order\u201d (ACO), frequently used by the Environmental Protection Agency (EPA) to enforce statutes it administers. The Court held that the Administrative Procedure Act makes available \u201cpre-enforcement review\u201d of ACOs under Section 404 of the Clean Water Act (CWA), which establishes the federal wetlands permitting program. Recipients of Section 404 ACOs no longer have to wait, while penalties accrue, until EPA files an action to enforce the ACO before they can have jurisdictional objections to the order heard by a court. \nIn an ACO, EPA directs the recipient to comply with a statutory, regulatory, or permit requirement and recites the penalties that noncompliance may entail should EPA file an enforcement action in court. ACOs are often described as a quick, flexible enforcement tool that serves as an advance warning allowing the recipient to sit down with EPA to negotiate a reasonable settlement that generally avoids penalties. From the recipient\u2019s vantage point, however, there is a distinct downside: for ACOs issued under CWA Section 404, the lower courts had barred pre-enforcement review. Thus, if the recipient disagreed with the facts or legal conclusions on which the ACO was based, the recipient faced a dilemma. The recipient could do nothing, challenging the order only later when EPA brought an enforcement action. If so and the challenge failed, the recipient faced the prospect of large civil penalties\u2014up to $75,000 per day. Or, the recipient could comply with the order at sometimes substantial cost, even though disagreeing with it, then apply for a permit later and challenge any denial thereof.\nThis was the dilemma faced by the petitioners in Sackett. The Sacketts filled in a lot to prepare it for house construction. EPA then claimed they should have first obtained a wetlands fill permit and so issued an ACO ordering them to restore the lot to its pre-fill condition, even if they intended at some point to apply for a permit. EPA denied the Sacketts\u2019 request for a hearing as to whether their land was a wetland covered by the CWA. The couple then sued, but the lower courts found that pre-enforcement review of ACOs issued under Section 404 was unavailable. The Supreme Court reversed unanimously, holding as described above.\nThough the Sackett decision was written narrowly to apply only to ACOs under CWA Section 404, it has wider implications. First and most importantly, it may serve as precedent for establishing the availability of pre-enforcement review under other CWA sections, or outside the CWA entirely. Second, EPA would seem to have at least three enforcement options following Sackett. It may simply prepare fuller administrative records supporting each jurisdictional determination, a course involving a trade-off between ensuring the defensibility of its ACOs and the number of ACOs it can issue. Or it might forego ACOs occasionally and proceed directly to civil enforcement actions seeking money penalties, an option offering less opportunity for landowners to sit down and negotiate with the agency, avoiding penalties in many cases. Or EPA could turn increasingly to sending out nonbinding noncompliance letters. Unlike an ACO, these would have no direct legal consequences and thus likely would be deemed unreviewable.\nThird, Sackett might lead to a reappraisal of the current allocation of Section 404 enforcement responsibility between EPA and the Corps of Engineers. And finally, it may prompt litigation efforts to reverse current case law under which jurisdictional determinations by the Corps under Section 404 are deemed nonfinal, hence unreviewable in the courts.",
      "type": "CRS Report",
      "typeId": "REPORTS",
      "active": false,
      "formats": [
        {
          "format": "HTML",
          "encoding": "utf-8",
          "url": "http://www.crs.gov/Reports/R42450",
          "sha1": "c974d3aaf1ef03f5c01467c02b1cf2097348d89c",
          "filename": "files/20120326_R42450_c974d3aaf1ef03f5c01467c02b1cf2097348d89c.html",
          "images": null
        },
        {
          "format": "PDF",
          "encoding": null,
          "url": "http://www.crs.gov/Reports/pdf/R42450",
          "sha1": "046fdfd20382502c5c4550d092fa3b162a2674a7",
          "filename": "files/20120326_R42450_046fdfd20382502c5c4550d092fa3b162a2674a7.pdf",
          "images": null
        }
      ],
      "topics": []
    }
  ],
  "topics": []
}