The transcript from today’s SCOTUS argument in Sackett v. EPA is out.  Sackett is a landowner challenging an EPA CWA § 309 Administrative Compliance Order that directed him to cease wetlands fill activities and restore wetlands on his lot, where he was building a residence.  The lower courts held (consistent with all other circuits) that judicial review of a compliance order was not available until (and unless) EPA ever sought  enforcement of the order.

Things seemed to be going well for EPA during petitioner’s argument, as several Justices keyed in on the futility of seeking review of the compliance order under an arbitrary and capricious standard, which would not even resolve the enforceability of the order later on in an enforcement proceeding by EPA.  Even Justice Scalia referred to that as seeking two rolls of the dice.

But the Assistant Solicitor General opened his argument by emphasizing that, under EPA’s reading of the statute, the landowner did indeed become subject to double daily potential penalties for violating the consent order — once for violating the statute, and a second for violating the consent order.  That’s always been my reading of the statute.  This concession led Justice Breyer to comment that the usual prerequisites of finality under Abbot Labs have been satisfied:

You’ve got me now into the area, we are applying the APA and the question is Abbott Labs and is it final. Well, here there doesn’t seem anything more for the agency to do, and here the person whom the order is directed against is being hurt a lot.

If EPA has lost Justice Breyer, then there is not much hope for unreviewable CWA Administrative Compliance Orders.  Other more conservative Justices might be inclined to find a Due Process violation: Justice Alito seemed to suggest that the compliance order had the immediate effect of depriving Sackett of his property rights.

Administrative Compliance orders are an essential tool in EPA’s enforcement toolkit.  If EPA has to go to court every time it issues an ACO, it’s enforcement efforts will be hobbled (which is why all the usual industry groups and the Chamber of Commerce are supporting the Sackketts’ case).

At least if the Court splits on whether pre-enforcement review is required by the Administrative Procedure Act, or by Due Process, the holding may be limited to the Clean Water Act — and wouldn’t necessarily overturn the CERCLA Unilateral Administrative Order process, review of which is statutorily precluded by CERCLA § 113(h).

Sackett’s counsel seemed to be sufficiently happy with the way EPA’s argument went that he was ready to step down without taking his rebuttal time!