CWA and Pre-Enforcement Review: Yes or No?

Feb 07, 2012

In a “David v. Goliath” analogy, “David Sackett” is a homeowner accused by “Goliath EPA” of violating the CWA by grading on a wetland without a federal permit.  The Sacketts argue that they should not be required to comply with EPA’s compliance order – or in the alternative, risk civil fines and/or criminal penalties –without first getting a hearing.  They were dismissed in District Court for lack of jurisdiction; on appeal, the Ninth Circuit confirmed a long line of precedent interpreting the CWA to preclude pre-enforcement review.  The Supreme Court focused on two questions: (1) Whether the APA allows petitioners to seek pre-enforcement judicial review of an administrative compliance order; and (2) If the answer is “No,” whether such denial violates the Due Process Clause.  Oral arguments were conducted on Jan 9, 2012.  The Court has not yet released its decision.