Sep 20: In the U.S. Court of Appeals, Ninth Circuit, Case No.08-35854. As the Appeals Court explains, the case must determine whether Federal courts have subject-matter jurisdiction to conduct review of administrative compliance orders issued by the U.S. EPA under the Clean Water Act (CWA) before EPA has filed a lawsuit in Federal court to enforce the compliance order. The Appeals Court rules, "We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process."
In brief summary the Sacketts argued that a compliance order issued by EPA regarding a wetlands violation was: (1) arbitrary and capricious under the Administrative Procedure Act; (2) issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) issued on the basis of an "any information available" standard that is unconstitutionally vague. The district court granted the EPA's Federal Rule of Civil Procedure 12(b)(1) motion to dismiss the Sacketts' claims for lack of subject-matter jurisdiction. It concluded that the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in Federal court. The Sacketts filed a Federal Rule of Civil Procedure 59(e) motion for clarification and reconsideration that was also denied.
In making its ruling, the Appeals Court indicates that, ". . .we do not work from a blank slate. Every circuit that has confronted this issue has held that the "CWA impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court." The Appeals Court cites cases from the 10th, 6th, 4th, and 7th Circuits and many Districts and says, "The reasoning of these courts is persuasive to us, as well as the broad uniformity of consensus on this issue."
The Appeals Court summarizes, "In conclusion, we hold that it is 'fairly discernable' from the language and structure of the Clean Water Act that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders issued by the EPA pursuant to 33 U.S.C. § 1319(a)(3). We further interpret the CWA to require that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order. Thus we do not see any sharp disconnect between the process given a citizen and the likely penalty that can be imposed under the CWA. Under these circumstances, preclusion of pre-enforcement judicial review does not violate the Sacketts' due process rights. The district
court properly dismissed this case for lack of subject-matter jurisdiction."
Access the complete opinion (click here).
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