566 U.S. 120 (2012), 10-1062, Sackett v. Environmental Protection Agency

Docket Nº:10-1062
Citation:566 U.S. 120, 132 S.Ct. 1367, 182 L.Ed.2d 367, 80 U.S.L.W. 4240, 23 Fla.L.Weekly Fed. S 195
Opinion Judge:Scalia, Justice.
Party Name:CHANTELL SACKETT, ET VIR, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, et al
Attorney:Damien M. Schiff argued the cause for petitioners. Malcolm L. Stewart argued the cause for respondents.
Judge Panel:Scalia, J., delivered the opinion for a unanimous Court. Ginsburg, J., post, p. 131, and Alito, J., post, p. 132, filed concurring opinions. Justice Ginsburg, concurring. Justice Alito, concurring.
Case Date:March 21, 2012
Court:United States Supreme Court
 
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Page 120

566 U.S. 120 (2012)

132 S.Ct. 1367, 182 L.Ed.2d 367, 80 U.S.L.W. 4240, 23 Fla.L.Weekly Fed. S 195

CHANTELL SACKETT, ET VIR, Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY, et al

No. 10-1062

United States Supreme Court

March 21, 2012

Argued January 9, 2012.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SYLLABUS

[182 L.Ed.2d 370] [132 S.Ct. 1368] The Clean Water Act prohibits " the discharge of any pollutant by any person," 33 U.S.C. § 1311, without a permit, into " navigable waters," § 1344. Upon determining that a violation has occurred, the Environmental Protection Agency (EPA) may either issue a compliance order or initiate a civil enforcement action. § 1319(a)(3). The resulting civil penalty may not " exceed [$37,500] per day for each violation." § 1319(d). The Government contends that the amount doubles to $75,000 when the EPA prevails against a person who has been issued a compliance order but has failed to comply.

The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. The Sacketts sought declarative and injunctive relief in the Federal District Court, contending that the compliance order was " arbitrary [and] capricious" under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and that it deprived them of due process in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The Ninth Circuit affirmed, concluding [182 L.Ed.2d 371] that the Clean Water Act precluded preenforcement judicial review of compliance orders and that such preclusion did not violate due process.

Held: The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA's order. Pp. 125-131, 182 L.Ed.2d, at 373-377.

(a) The APA provides for judicial review of " final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. The compliance order here has all the hallmarks of APA finality. Through it, the EPA " determined" " rights or obligations," Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281, requiring the Sacketts to restore their property according to an Agency-approved plan and to give the EPA access. Also, " legal consequences . . . flow" from the order, ibid., which, according to the Government's litigating position, exposes the Sacketts to double penalties in future enforcement proceedings. The order also severely limits their ability to obtain a permit for their fill from the Army Corps of Engineers, see 33 U.S.C. § 1344; [132 S.Ct. 1369] 33 C. F. R. § 326.3(e)(1)(iv). Further, the order's issuance marks the " consummation" of the agency's

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decisionmaking process, Bennett, supra, at 178, 117 S.Ct. 1154, 137 L.Ed.2d 281, for the EPA's findings in the compliance order were not subject to further agency review. The Sacketts also had " no other adequate remedy in a court," 5 U.S.C. § 704. A civil action brought by the EPA under 33 U.S.C. § 1319 ordinarily provides judicial review in such cases, but the Sacketts cannot initiate that process. And each day they wait, they accrue additional potential liability. Applying to the Corps of Engineers for a permit and then filing suit under the APA if that permit is denied also does not provide an adequate remedy for the EPA's action. Pp. 125-128, 182 L.Ed.2d, at 373-375.

(b) The Clean Water Act is not a statute that " preclude[s] judicial review" under the APA, 5 U.S.C. § 701(a)(1). The APA creates a " presumption favoring judicial review of administrative action." Block v. Community Nutrition Institute, 467 U.S. 340, 349, 104 S.Ct. 2450, 81 L.Ed.2d 270. While this presumption " may be overcome by inferences of intent drawn from the statutory scheme as a whole," ibid., the Government's arguments do not support an inference that the Clean Water Act's statutory scheme precludes APA review. Pp. 128-131, 182 L.Ed.2d, at 375-377.

622 F.3d 1139, reversed and remanded.

Damien M. Schiff argued the cause for petitioners.

Malcolm L. Stewart argued the cause for respondents.

Scalia, J., delivered the opinion for a unanimous Court. Ginsburg, J., post, p. 131, and Alito, J., post, p. 132, filed concurring opinions.

OPINION

Scalia, Justice.

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We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U.S.C. § 500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an administrative compliance order under § 309 of the Clean Water Act, 33 U.S.C. § 1319. The order asserts that the Sacketts' property is subject to the Act, and that they have violated its provisions by placing fill material [182 L.Ed.2d 372] on the property; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan.

I

The Clean Water Act prohibits, among other things, " the discharge of any pollutant by any person," § 1311, without a permit, into the " navigable waters," § 1344--which the Act

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defines as " the waters [132 S.Ct. 1370] of the United States," § 1362(7). If the EPA determines that any person is in violation of this restriction, the Act directs the Agency either to issue a compliance order or to initiate a civil enforcement action. § 1319(a)(3). When the EPA prevails in a civil action, the Act provides for " a civil penalty not to exceed [$37,500] per day for each violation." 1 § 1319(d). And according to the Government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000--up to $37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order.

The particulars of this case flow from a dispute about the scope of " the navigable waters" subject to this enforcement regime. Today we consider only whether the dispute may be brought to court by challenging the compliance order--we do not resolve the dispute on the merits. The reader will be curious, however, to know what all the fuss is about. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), we upheld a regulation that construed " the navigable waters" to include " freshwater wetlands," id., at 124, 106 S.Ct. 455, 88 L.Ed.2d 419, themselves not actually navigable, that were adjacent to navigable-in-fact waters. Later, in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), we held that an abandoned sand and gravel pit, which " seasonally ponded" but which was not adjacent to open water, id., at 164, 121 S.Ct. 675, 148 L.Ed.2d 576, was not part of the navigable waters. Then most recently, in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), we considered whether a wetland not adjacent

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to navigable-in-fact waters fell within the scope of the Act. Our answer was no, but no one rationale commanded a majority of the Court. In his separate opinion, THE CHIEF JUSTICE expressed the concern that interested parties would lack guidance " on precisely how to read Congress' limits on the reach of the Clean Water Act" and would be left " to feel their way on a case-by-case basis." Id., at 758, 126 S.Ct. 2208, 165 L.Ed.2d 159 (concurring opinion).

The Sacketts are interested parties feeling their way. They own a 2/3-acre residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but is separated from the lake by several lots containing permanent structures. In preparation for constructing a house, the Sacketts filled in part of their lot with dirt and [182 L.Ed.2d 373] rock. Some months later, they received from the EPA a compliance order. The order contained a number of " Findings and Conclusions," including the following: " 1.4 [The Sacketts' property] contains wetlands within the meaning of 33 C. F. R. § 328.3(b); the wetlands meet the criteria for jurisdictional wetlands in the 1987 'Federal Manual for Identifying and Delineating Jurisdictional Wetlands.'

" 1.5 The Site's wetlands are adjacent to Priest Lake within the meaning of 33 C. F. R. § 328.3(c). Priest Lake is a 'navigable water' within the meaning of section 502(7) of the Act, 33 U.S.C. § 1362(7), and 'waters of the United [132 S.Ct. 1371] States' within the meaning of 40 C. F. R. § 232.2.

1.6 In April and May, 2007, at times more fully known to [the Sacketts, they] and/or persons acting on their behalf discharged fill material into wetlands at the Site. [They] filled approximately one half acre.

. . . . .

" 1.9 By causing such fill material to enter waters of the United States, [the Sacketts] have engaged, and are continuing to engage, in the 'discharge of pollutants' from a

Page 125 point source within the meaning of sections 301 and 502(12) of the Act, 33 U.S.C. § § 1311 and 1362(12).

. . . . .

" 1.11 [The Sacketts'] discharge of pollutants into waters of the United States at the Site without [a] permit constitutes a violation of section 301 of the Act, 33 U.S.C. § 1311." App. 19-20.

On the basis of these findings and conclusions, the order directs the Sacketts, among other things, " immediately [to] undertake activities to restore the Site, in accordance with [an EPA-created] Restoration Work Plan" and to " provide and/or obtain access to the Site . . . [and] access to all records and documentation related to the conditions at the Site . . . to EPA employees and/or their designated representatives." Id., at 21-22, ¶¶ 2.1, 2.7.

The Sacketts, who do not believe that...

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