Sackett v. EPA and pre-enforcement review of agency orders

Today the Supreme Court heard argument in Sacket v. EPA, No. 10-1062, concerning whether a landowner can obtain pre-enforcement review of an EPA order to remove unpermitted filling of wetlands.  The Ninth Circuit, agreeing with every other court of appeals to decide the issue, had held that such review was unavailable.

Former Section chair Bill Funk offers these comments on the case:

   The media has characterized this case, depending upon their orientation, either as an overbearing government threatening a family for trying to build a house on slightly more than a half-acre of its property or as threat to the ability of the Environmental Protection Agency to take necessary action to protect the environment.  Unfortunately, for those of us who prefer truth to propaganda, neither of these descriptions accurately state what is before the Court. 

   The Sacketts want to build a house on their .6 acre property, and in preparation for that they filled an area that EPA believes is a wetland.  While they might have qualified for a permit for this activity, they did not seek one, and when informed by EPA that it appeared they were violating the Clean Water Act, they did not desist from their activity.  EPA consequently issued a “compliance order,” as authorized by the Clean Water Act, ordering the Sacketts to cease and desist from their filling activities and in addition to remove the fill material and restore the area to its original condition.  The order included the warning that violation of the order might subject the Sacketts to substantial civil or administrative penalties.  The Sacketts then brought suit in federal court alleging among other things that the compliance order was arbitrary and capricious. 

   Whether the Sacketts or EPA are correct is not the issue before the Court.  The issue is simply whether the Sacketts may seek a judicial determination of the correctness of EPA’s order without having to violate that order and risk large civil or administrative penalties in order to obtain a judicial determination of the legality of EPA’s order as a defense to that enforcement action.  EPA, understandably, would like to avoid judicial review until it brings an enforcement action in court.  The threat of huge penalties if EPA is correct often may be enough to force compliance even if the defendant strongly believes that EPA is wrong.  Recall Clint Eastwood’s challenge as Dirty Harry to various perpetrators; “make my day,” he would say, leaving them to guess whether he had another bullet in his pistol. 

   Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, there may substantial harm to the environment, even if EPA eventually prevails.  Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end.  However, this fear is unfounded.  The Administrative Procedure Act is clear that obtaining judicial review of a compliance order does not by itself relieve a person from the requirement to comply with that order pending judicial review.  That Act provides that a person may seek a stay of the order first from the agency and then from the court if the agency denies the request, but that request will be judged on its own merits.  For example, with respect to the Sacketts, it is unlikely a court would stay EPA’s order to cease and desist from further damage to the alleged wetlands, but it might well stay the requirement that the Sacketts restore the wetlands until a determination of the validity of EPA’s order.  Thus, the judicial review the Sacketts seek would not enable continued harm to the environment during the review proceedings.

   One need not view EPA as a rogue agency, or even as Dirty Harry, to appreciate the need for providing a judicial check on agency action.  Even in good faith EPA has made errors in the past and will again in the future; after all, it is staffed by humans.  Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA to ensure that its decisions are based on sound facts and law that will be readily upheld in courts.  Absent that incentive, the tendency noted by Lord Acton that power corrupts and absolute power corrupts absolutely could lead an agency to rely more on coercion than law.  It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.

Administrative Law Writing Competitions

Two administrative law writing competitions may be of interest.

The first is the Section's Gellhorn-Sargentich Student Essay Competition.  The assigned topic is: "Discuss any topic relating to administrative law."  The essay can be a paper submitted for a graded law school course, a law review note or comment, or something written specifically for the competition.  The competition is open only to current students at ABA-accredited law schools who are members of the Section.  (Students can join the ABA for next to nothing and join the Section for literally nothing.)

The winner will receive a $5,000 cash prize and round-trip airfare and accommodation to attend the Section’s Fall Conference in Washington, DC.  At the discretion of the respective editorial boards, the winning entry may be published in the Administrative and Regulatory Law News and/or the Administrative Law Review.

The submissions deadline is April 1, 2012.  Full details here.

Second, the American Constitution Society sponsors an annual writing competition named for Judge Richard Cudahy of the 7th Circuit.  Like the Gellhorn-Sargentich competition, the Cudahy competition welcomes submissions on any topic in the area of administrative law.  And unlike the GS competition, it is open not just to law students but to lawyers and law professors as well.  ACS picks one student winner and one lawyer winner; each receives $1500.  The submissions deadline is February 12, 2012.  Full details here.

Four New Administrative Conference Recommendations

The Assembly of the Administrative Conference held its 55^th Plenary session on December 8-9, 2011, adopting four new recommendations:

• Recommendation 2011-5: Incorporation by Reference
• Recommendation 2011-6: International Regulatory Cooperation
• Recommendation 2011-7: Federal Advisory Committee Act - Issues and Proposed Reforms
• Recommendation 2011-8: Agency Innovations in e-Rulemaking

An archive video of the 55^th Plenary session proceedings is available on the ACUS homepage.

The recommendations and additional background materials are also available on the plenary session web page.

Rulemaking: D.C. Circuit Decision in ATA v. National Mediation Board

Here's a post from Jeffrey Lubbers, Professor of Practice in Administrative Law at American University's Washington College of Law:

Friends—The D.C. Circuit affirmed the district court’s upholding of the National Mediation Board’s election ballot counting rule today.  Judge Tatel wrote for himself and Judge Griffin.  Judge Henderson dissented.

The court ruled, using Chevron, that the statute was ambiguous and that the Board’s rule was permissible.  It also ruled that its change from a longstanding rule was not arbitrary and capricious, citing Fox TV Stations, and affirmed Judge Friedman’s denial of a discovery request by ATA seeking evidence of bias on the part of the Board majority, citing the ANA case.  It is a rare rulemaking bias case in that regard. 

http://www.cadc.uscourts.gov/internet/opinions.nsf

10-5253, Air Transp. Assoc. of America v. National Mediation Board

REINS Act Passes House

The REINS (Regulations from the Executive in Need of Scrutiny) Act, H.R. 10, passed the House on December 7.  The vote was 241-to-184; all Republicans present and four Democrats voted for the bill.  Politically, the bill is generally lumped together with the Regulatory Accountability Act, H.R. 3010, on which see here and here.  Thus, the Wall Street Journal likes it; the New York Times does not.  Substantively, however, it would do something quite different.  In a nutshell, it would take the existing Congressional Review Act's almost-entirely-ignored provisions for congressional disapproval of significant regulations and makes one fundamental change: Instead of permitting passage of a joint resolution of disapproval before a major regulation (i.e. one with an annual impact on the economy over $100 million) becomes effective, it would require passage of a joint resolution of approval before the regulation becomes effective. The bill would create a special fast-track mechanism for considering such a resolution within the required time period; delaying tactics such as filibusters and holds would not be permitted.

As with the Regulatory Accountability Act, the legislation's prospects in the Senate are much dimmer than in the House, and the White House has issued a Statement of Administration Policy threatening a veto.

The Section has not taken a position or submitted comments on the REINS Act.  Useful discussion in the blogosphere includes Jonathan Adler's generally supportive posts at the Volokh Conspiracy, former Section Chair Sally Katzen's testimony opposing the bill, and extensive coverage at RegBlog.

Law Community on Data.gov

A key piece of the current administration's efforts to make more government-held information available on-line, in usable form, is the data.gov website.  Readers of this blog might be particularly interested in the "Law Data Community" on that site.  This is a portal to material that is not "data" in the usual sense, but rather a wide range of agency legal materials other than regulations: adjudicatory decisions, case filings from DOJ, OLC and agency general counsel opinions, and various agency directives.

Although the available agency material is for now somewhat haphazard -- including some that will be of broad interest and some that almost no one will care about -- and incomplete, there's a lot of good stuff here which is not in every case easy to find otherwise.  Material is steadily accumulating, to the point where the site is now a useful resource, and likely to be come more so in the future.  It's worth a look.

Regulatory Accountability Act Passes House

Today the House of Representatives passed the Regulatory Accountability Act, H.R. 3010, by a vote of 253-167.  No Republicans voted against it; 19 Democrats voted for it.  The general expectation is that the bill will not advance in the Senate, and the White House has threatened a veto if it does, so the ultimate fate of the legislation will likely turn on the results of the 2012 elections.

Press coverage of the vote can be found here and here.  The Section's comments on the bill are here.