Sackett v. EPA and judicial interpretations of environmental statutes: what role for NEPA?

• Author: Mintz, Joel A.
• Position: National Environmental Policy Act of 1969 - Fall Essay Series

1. INTRODUCTION

   The U.S. Supreme Court's long-awaited decision in Sackett u. U.S. Environmental Protection Agency, (1) summarized earlier in this collection of Essays, creates at least as many uncertainties as it resolves unsettled issues of law. In this Essay, I will identify a significant subset of those uncertainties and suggest an alternative analysis that the Court might have adopted in Sackett that would have harmonized the purposes of both the Clean Water Act (CWA) (2) and the Administrative Procedure Act (APA) (3) with an important, though infrequently cited, directive of the National Environmental Policy Act (NEPA). (4)

   In Part II of this Essay, I will discuss the nature and practical significance of the U.S. Environmental Protection Agency (EPA or the Agency) administrative compliance orders (ACOs) within the panoply of enforcement tools generally available to EPA enforcement officials. In Part III, I will focus on the legal principles, if any, that the Supreme Court's opinion in Sackett has established as a matter of stare decisis. Among other things, this Part will touch upon the extent to which the analysis presented by Justice Antonin Scalia in the Sackett case may have been intended to apply to Clean Water Act ACOs that do not include determinations of the federal government's authority to regulate particular wetlands, or even to be applicable to the enforcement provisions of other important federal environmental laws. Finally, in Part IV, I will discuss how the application of section 102(1) of NEPA (5) (also known as the NEPA interpretation mandate)--which the Court did not mention in Sackett (6)--might have yielded quite a different result in that case, while providing greater clarity as to the scope and meaning of the Sackett decision.

2. THE NATURE AND SIGNIFICANCE OF EPA ADMINISTRATIVE COMPLIANCE ORDERS

   While the enforcement provisions of the federal pollution control legislation implemented by EPA vary in detail from statute to statute, nearly all such provisions allow the Agency to make use of one or more enforcement mechanisms--often likened to tools in a tool chest--to redress violations of applicable statutory and regulatory requirements. Among those mechanisms is administrative enforcement, a generic term that covers a variety of enforcement techniques which environmental agencies are typically authorized to implement, on their own, to compel compliance with environmental standards or to collect monetary penalties from environmental law violators. Administrative enforcement measures, which vary considerably in their nature, stringency, and consequences, typically include notices of violation, (7) administrative compliance orders (8) (like the one at issue in Sackett), administrative penalty assessment orders, (9) emergency orders, (10) and field citations. (11)

   In addition to administrative enforcement, EPA and other administrative agencies are also empowered to make use of a significant additional set of enforcement mechanisms. Thus, EPA has the authority to initiate civil judicial enforcement actions in U.S. District Courts, (12) to refer particular cases to the U.S. Department of Justice (DO J) for criminal prosecution, (13) to intervene as a party in civil enforcement cases initiated by private citizen plaintiffs, (14) and under certain limited circumstances, to prohibit all federal agencies from entering into a contract with any person convicted of violating the Clean Water Act or the Clean Air Act. (15) At the same time, however, administrative enforcement remains a vital tool for EPA and other environmental enforcement agencies and represents a large proportion of all EPA enforcement activity. For example, in 2001, over 80% of the Agency's enforcement actions were administrative actions) (16) There are several reasons for this enforcement pattern. First, as Sheldon Novick has aptly observed, if they are used effectively, administrative orders "provide a quick, responsive, and flexible enforcement tool, particularly well-suited to remedying less egregious violations." (17) Second, administrative enforcement actions make efficient use of scarce EPA resources. Relative to civil or criminal enforcement matters, they often require considerably less staff time and attention. (18) Third, in matters requiring resolution by a neutral party, EPA's own administrative law judges may well be more knowledgeable than members of the general judiciary about the technical aspects of environmental disputes. (19) Finally, EPA administrative enforcement actions do not require coordination with the DOJ (20)--a separate organizational entity with its own set of personnel, internal procedures, opinions, and priorities.

   Very clearly, administrative enforcement plays a critical role in EPA's enforcement work. It allows the Agency to establish a deterrent enforcement presence across a broad range of regulated industries. In contrast, federal civil and criminal enforcement actions against large companies polluting the environment often require a considerable EPA enforcement effort against only one (typically among many) non-complying company or industry. Although civil and criminal cases do have a deterrent effect, that effect tends to be more limited in scope. Moreover, administrative enforcement actions can typically be resolved more quickly than civil or criminal enforcement matters, and often with equally beneficial environmental results. (21) And administrative enforcement seems a considerably more potent and forceful enforcement technique than a mere notice of violation or warning letter, which can be ignored by recalcitrant polluters with relatively greater ease. (22)

3. THE PRECEDENTIAL SIGNIFICANCE OF SACKETT V. EPA: WHITHER EPA ADMINISTRATIVE ENFORCEMENT?

   How broadly should the Sackett decision be interpreted? Is the Supreme Court's analysis in Sackett only meant to be applied to EPA wetlands jurisdictional determinations contained within administrative orders? Should the Sackett rationale be applied in challenges to the factual determinations that provide the basis for other types of Clean Water Act ACOs? Is the opinion even applicable to EPA ACOs issued under the authority of other federal pollution control statutes? At least to this observer, the Supreme Court's decision in Sackett merely provides indirect and non-dispositive hints as to how those important questions will be resolved. As I will argue in Part IV, by too narrowly defining the particular "statutory scheme as a whole," (23) the Court missed an excellent opportunity to resolve the tension between the Clean Water Act, the APA, and other federal environmental statutes in a way that would have accorded appropriate respect to the lofty alms of Congress in enacting pollution control and public health legislation, while simultaneously complying with what seems a straightforward, and mandatory, congressional directive as to how environmental and non-environmental statutes are to be harmonized.

   The Supreme Court's majority opinion in Sackett, together with an aspect of Justice Ginsburg's and Justice Alito's concurring opinions, provide some (albeit minimal) indication that the case should be given a narrow and limited interpretation by the lower courts. One such signal is the narrow way in which Justice Scalia's opinion states the question before the Court: "We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act to challenge the issuance by the Environmental Protection Agency (EPA) of an administrative compliance order under section 309 of the Clean Water Act." (24) The Court's refusal to frame the legal issue before it more broadly--for example, by asking whether parties subject to ACOs may bring a civil action under the APA challenging the basis for those orders--may perhaps be argued to signal the Court's intention to announce only a narrowly based legal principle.

   More evidence for a limited reading of the holding of Sackett may be gleaned from the concurring opinions of Justices Ginsburg and Alito. Justice Ginsburg indicated that she agreed with the Court's determination that the Sacketts were entitled at the pre-enforcement stage to judicial review of the jurisdictional basis for the EPA order that was issued to them--that is, to a review of whether EPA had regulatory authority with respect to their real property. (25) However, Justice Ginsburg then stated:

   Whether the Sacketts could challenge not only the 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. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court's opinion. (26) None of the nine Justices who joined the Sackett opinion questioned Justice Ginsburg's statement or expressed a contrary position. One wonders whether the majority's silence as to whether its holding applies to pre-enforcement judicial review of ACO terms and conditions was a condition that the other Justices acceded to as a quid pro quo for obtaining Justice Ginsburg's agreement to join the Court's unanimous opinion. Whether or not that was the case, however, her opinion does provide an additional sign that the Sackett holding is indeed of limited scope.

   Ironically, Justice Alito's concurring opinion--written from what appears to be an entirely different set of premises than the opinion of Justice Ginsburg--may also be read to bolster a modest and limited interpretation of Sackett's reach. Justice Alito stated that, even though the Court's decision in the case provides "a modest measure of relief" to property owners in the position of the Sacketts, the opinion Of the Court "still leaves most property owners with little practical alternative but to dance to the EPA's tune." (27) In Alito's view, what is...