EPA's Administrative Compliance Orders Ruled Unconstitutional

• Author: Mary Margaret McCleroy
• Position: JD candidate at AU Law
• Pages: 02

Page 3

On June 24, 2003, the Eleventh Circuit Court of Appeals declared the Environmental Protection Agency's ("EPA") authority to issue legally binding administrative compliance orders ("ACOs") unconstitutional.¹This decision could foreshadow a broader movement to weaken EPA's ability to enforce the broad range of environmental and public health statutes that it is responsible for implementing. While this decision undermines EPA's ability to enforce ACOs, it does not leave EPA completely helpless to enforce environmental laws.

When the EPA obtains information that an individual, business, or agency is violating a law, it has four options to enforce compliance.² First, the EPA can request the Attorney General to enforce a criminal prosecution.³ Second, the EPA can file suit in district court for injunctive relief to temporarily stop an action (or non-action) until a trial on the merits can be heard.⁴ Third, the EPA can adjudicate liability under the Administrative Procedures Act ("APA") and assess civil penalties against the violators.⁵ All of these actions are subject to judicial review and none of them are affected by the Eleventh Circuit's ruling.

The EPA's fourth option is to issue an ACO directing compliance.⁶ If the violator continues to ignore the law, then the EPA may assess fines and penalties against the violator.⁷The Eleventh Circuit argues that ACOs are not a final agency action and are therefore not subject to judicial review.⁸ A violation of an ACO is its own violation, leading to fines and imprisonment.⁹ The Eleventh Circuit claims that ACOs, which in themselves have the status of law with their own civil fines and criminal penalties, are not subject to adjudication about any EPA violations, they therefore are unconstitutional.¹⁰Because ACO receivers are not afforded an opportunity to represent themselves in a neutral tribunal, ACOs violate the violation of the Due Process Clause of the constitution.¹¹Furthermore, because ACOs have the status of law and carry their own fines, civil penalties, and criminal punishment, ACOs furthermore violate the separation-of-power principal between the judicial branch and the executive branch in the EPA.¹²

Whether ACOs are truly unconstitutional is a subject for debate. In a separate case, the EPA filed a Supreme Court brief on July 16, 2003, in which the EPA claims that the Eleventh Circuit's reasoning for determining that ACOs are unconstitutional was flawed.¹³ First, the EPA claims that all EPA orders, including ACOs, are subject to judicial review either on petition for review or in an action brought by the EPA to enforce the order in court.¹⁴ Secondly, the EPA claims that the Eleventh Circuit's understanding of the Due Process Clause was erroneous; the Due Process Clause does not require a formal evidentiary hearing in all circumstances.¹⁵The Supreme Court will ultimately decide the constitutionality of EPA ACOs. However, even without ACOs the EPA still has three methods of enforcement at its disposal. The EPA will still be able to initiate criminal prosecutions, injunctive relief, assessment of liability, and civil penalties. If the Supreme Court deems that ACOs are unconstitutional, the EPA will expend more time, money, and court resources than would have been conserved during an informal ACO process. The absence of ACOs does not render the EPA defenseless or void; it still has the ultimate avenues of statutory enforcement available- the courts.

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[1] TVA v. Whitman, 2003 U.S. App. LEXIS 12830, at *2 (11th Cir. June 24, 2003).

[2] Id. at *6.

[3] Clean Air Act, 42 U.S.C. ß 7413 (a)(3)(D), (c) (2003).

[4] 42 U.S.C. ß 7413 (b).

[5] 42 U.S.C. ß 7413 (d).

[6] 42 U.S.C. ß 7413 (a)(3)(B).

[7] 42 U.S.C. ß 7413 (a)(1).

[8] TVA, 2003 U.S. App. LEXIS 12830, at *8.

[9] 42 U.S.C. ß 7413 (d).

[10] TVA, 2003 U.S. App. LEXIS 12830, at *9, *10.

[11] See Id.

[12] 42 U.S.C. ß 7413 (c)(1), (d); TVA, 2003 U.S. App. LEXIS 12830 *10.

[13] Respondent's Brief for the EPA at *12, Alaska Dep't of Env't Conservation v. EPA (No. 02-658).

[14] Respondent's Brief at *19, Alaska Dep't of Env't Conservation (No. 02-658).

[15] See Id.