The Sackett decision is out. Not surprisingly, the Supreme Court voted 9-0 to hold that EPA’s order directing the Sacketts to remove fill material from a disputed wetlands area was final, ripe, and immediately reviewable under the Administrative Procedure Act. Justice Scalia wrote the relatively short opinion, which focused entirely on the finality question under the APA. The opinion notes that nothing in the Clean Water Act makes EPA Administrative Orders issued under section 309(a) unreviewable.
This is important because General Electric has challenged the unreviewability of CERCLA enforcement orders prior to EPA enforcement. Although the stakes are much higher, CERCLA section 113(h), unlike the CWA, specifically precludes pre-enforcement review of an EPA cleanup order issued under Section 106 of CERCLA. General Electric has unsuccessfully challenged 113(h) as a violation of Due Process, and the Supreme Court denied cert on GE’s challenge last year. The Sackett decision says nothing about Due Process, so it doesn’t given GE any help (contrary to this post on SCOTUSBLOG). Of course, Justice Scalia’s recitation of the penalties the Sacketts risked by delaying review until EPA enforcement suggests he, at least, might be receptive to a Due Process claim as well. Justice Alito’s concurring opinion does explicitly, but cryptically, refer to Due Process, suggesting that “In a nation that values due process, not to mention private property, [the Sacketts’] treatment is unthinkable.”
This decision will certainly hobble EPA’s wetlands enforcement efforts, but it wont affect CERCLA orders, at least in the short run.