I recently blogged about a case before the Supreme Court testing whether parties can seek pre-enforcement judicial review of EPA orders (ACOs) without being subject to fines of up to $70,000 per day for failure to comply with the order.
My earlier blog described the essential details of the case, in which, to recap briefly, the EPA ACO prohibited the Sacketts, owners of a property near a lake, from filling in a portion of the property because EPA claimed it was a wetland.
Supreme Court commentators seem to agree that the oral arguments do not bode well for the government. Lyle Denniston wrote in SCOTUSblog, “With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers.”
The Legal Planet blog stated: “What distinguishes this case from a routine examination of dry administrative law concepts is the overt hostility towards EPA and its regulatory efforts that many of the Justices displayed in their questions from the bench.”
Here is an example of from the transcript of the oral argument:
Justice Breyer: If we agree then, look, for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite. And yet -- so here you are saying that this statute that says nothing about it precludes review, and then the second thing you say is that this isn't final. So I read the order. It looks like about as final a thing as I have ever seen. So tell me why I am wrong on those two points. (A copy of the argument transcript can be found here)
The interesting question is likely to be how the Sacketts win, not whether, and the reasoning and basis for the decision is the important issue, not who wins and who loses.
Will the opinion be a narrow ruling, limited to enforcement of the Clean Water Act? Will it include other federal environmental statutes enforced by EPA by Administrative Orders?
And, most significantly, will the Court base its decision on constitutional grounds, as suggested in several friends of the Court briefs, and hold that the lack of judicial review of ACOs is an unconstitutional deprivation of due process?