Practical impacts of the Sackett decision.

• Author: Ferlo, Albert
• Position: Jurisdiction for agency review - Fall Essay Series

1. INTRODUCTION AND SHORT SUMMARY

   The Supreme Court's recent decision in Sackett v. Environmental Protection Agency, (1) is already generating significant speculation. Other writers have begun discussing the decision's theoretical and scholarly aspects; we write to discuss its practical impacts. In this Essay, we draw on our diverse legal backgrounds: one attorney with many years of defending clients against agency orders, and one attorney with many years of enforcing agency orders--both now in private practice and frequently advising clients on the practical benefits and costs of whether to challenge an agency order or to cave-in to the order to avoid other costs. We do not write to suggest whether the Court's decision in Sackett was proper or improper; rather, we write simply to discuss the practical effects of this decision "in the streets," that is, how it is likely to be used or not used in real disputes. Although we come from different perspectives, we both conclude that, in practice, Sackett will provide clients with a new but limited decision pivot point: whether to incur the delays, costs, and risks involved in filing an early challenge to an agency decision, or to proceed in light of an agency order that--while onerous or even without clear merit--nevertheless promises a quick and relatively inexpensive path to completion of a project. Further, that decision may now include both: 1) the presence of a more complete record, and 2) more listening by and input from seasoned staff. Developed records and better listening open the door to real, rather than dictated, agreements--agreements that can be reached before any pre-enforcement hearing ever occurs.

2. APPLICABILITY BEYOND 33 U.S.C. section 1344?

   The applicability of Sackett beyond section 404 of the federal Clean Water Act (CWA) remains an open question. (2) As Justice Ginsberg stated in her concurrence:

   The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the [Environmental Protection Agency (EPA)]'s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today's opinion does not reach out to resolve. (3) Given those limits, and the fact that the Supreme Court's decision did not address other statutes, much of the ultimate importance of Sackett will depend upon its interpretation and use by future courts.

3. JURISDICTION UNDER THE APA: FINALITY, RIPENESS, AND EXHAUSTION

   1. Finality

      The requirement that a federal court's jurisdiction to review agency actions extends only to "final" decisions is deeply embedded in federal jurisprudence. The final decision requirement starts with the Administrative Procedure Act (APA), (4) which expressly states that judicial review is limited to "final agency action for which there is no other adequate remedy in a court." (5) While this language seems to present a fairly simple concept, federal courts have struggled for decades to determine what constitutes a "final" agency action for purposes of judicial review under the APA. (6) Two other jurisdictional requirements are often considered together with finality: ripeness and exhaustion of administrative remedies. Indeed, some courts can agree that jurisdiction does not exist, but cannot agree as to whether jurisdiction is lacking based on the absence of a final judgment, because the issue before them is not ripe, or because plaintiffs have failed to exhaust administrative remedies. (7) Sackett, however, focuses solely on the finality requirement.

      The Sackett decision is, in many ways, simply the latest affirmation by the Supreme Court that a court's jurisdiction under the APA extends only to final agency action. Indeed, Sackett does not add to the formulation of what constitutes final agency action. In finding the compliance order to be a final agency action, the Court applied its long-established test for determining whether a challenged agency action was final for purposes of judicial review. As the Court stated in Bennett y. Spear. (8)

      As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must mark the consummation of the agency's decisionmaking process--it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. (9) Finding that the EPA's administrative consent order met both tests, the Court found that the order was in fact "final" and could be challenged under the APA. (10) Not discussed in Sackett are the two other related jurisdictional tests for jurisdiction under the APA: ripeness and exhaustion.

   2. Ripeness

      While the line between ripeness and finality is not bright, courts have developed a separate set of factors to be applied to determine if an agency decision is not yet ripe for judicial review. The leading case here is Abbott Laboratories v. Gardner. (11) In Abbott Laboratories, the Court establishes the analytical framework for determining whether a particular case is ripe for review: "The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." (12)

      In 1997, the Court addressed the ripeness requirement in Ohio Forestry Ass'n v. Sierra Club, (13) where it focused on the ripeness of a challenge to a Land and Resource Management Plan (LRMP or Plan) developed under the National Forest Management Act of 1976 (NFMA) (14) for the Wayne National Forest in southern Ohio. (15) Pursuant to NFMA, the Forest Service was required to develop a plan to "guide all natural resource management activities" (16) in national forests, including the use of land for "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." (17) The LRMP for the Wayne National Forest permitted logging on 126,000 acres of federally owned land, while setting a total cap on the amount of timber that could be cut. (18) The LRMP did not, however, explicitly authorize the cutting of any trees. (19) Before logging could occur, the Forest Service had to undertake a number of analyses, including an environmental analysis under the National Environmental Policy Act (NEPA). (20)

      The Sierra Club challenged the LRMP, asserting that the Forest Service relied on erroneous analyses that favored logging and clearcutting. (21) Sierra Club claimed violations of both NEPA and NFMA, but limited its request for relief to two items: 1) a declaration under NFMA that the Plan was unlawful, and 2) an injunction prohibiting the Forest Service from permitting or directing further timber harvest pending revision of the LRMP. (22) As discussed below, the Court held that the Sierra Club's NFMA challenge to the LRMP's timber harvesting provisions was not ripe for judicial review.

      Applying the Abbott Laboratories test, the Court determined that withholding consideration "will not cause the parties significant hardship" because the Plan did not "command anyone to do anything or to refrain from doing anything." (23) Moreover, the LRMP did not grant or withhold a license, power, or authority and did not create any "legal rights or obligations." (24) In addition, because the Forest Service had to "focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court," the Court concluded that Sierra Club had "ample opportunity" to bring its challenge at a later date when the harm was more imminent and certain. (25) The Court also focused on the agency's ability to revise the Plan or address concerns through site-specific proposals for logging, noting that "the possibility that further consideration will actually occur before the Plan is implemented is not theoretical, but real." (26) Finally, the Court concluded that judicial resources would be preserved by delaying consideration of the Plan because the "elaborate, technically based plan" affected numerous parcels of land in various ways. (27)

      The Court, however, in dicta, expressly distinguished the ripeness of a challenge to a Forest Plan under NFMA from a challenge to an Environmental Impact Statement (EIS) under NEPA. The Court noted that a Forest Plan, which imposes standards that guide future use of forests, does not resemble an EIS developed under NEPA because "NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result." (28) Therefore, a person alleging the violation of a prescribed "NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper." (29)

      Courts reviewing agency action in the wake of Ohio Forestry generally draw a bright line between substantive challenges to the results of agency decision making--such as a Forest Plan--and procedural challenges under NEPA. Because NEPA challenges involve allegations of procedural failures, most courts find that the injury occurred at the time the allegedly inadequate EIS was promulgated. Indeed, since Ohio Forestry, the Ninth Circuit (along with the Seventh and Tenth Circuits) has recognized "the distinction between substantive challenges which are not ripe until site-specific plans are formulated, and procedural challenges which are ripe for review when a programmatic EIS allegedly violates NEPA." (30)

      In Kern v. US. Bureau of Land Management, (31) plaintiffs challenged the adequacy of the programmatic EIS prepared for a Resource Management Plan (RMP) under the Federal Land Policy and Management Act (FLPMA). (32) Defendants argued that the case was not ripe because the RMP was analogous to the Forest...