EPA Enforcement After Sackett v. EPA: The Future of EPA Compliance Orders
The Supreme Court’s recent decision in Sackett v. EPA  determined that Administrative Compliance Orders issued by the Environmental Protect Agency (EPA) are final agency actions, and as such, are subject to judicial review under the Administrative Procedures Act (APA).
The EPA pursues civil enforcement for the vast majority of statutory violations, and compliance orders are available as the first step of administrative intervention. According to the EPA, compliance orders serve as the beginning of the conversation between the Agency and a violator, and are intended to incite voluntary corrective action. The orders, issued to parties that the EPA reasonably believes to be in violation of a statute, specify the violation and set forth the date by which the violator must come into compliance with the relevant law  . Section 309 of the Clean Water Act (CWA) establishes a relatively low burden of proof for the issuance of a compliance order; the Administrator may base his finding of a violation on “any information available to him.  ” Should the violator not comply in the time indicated by the order, administrative penalties begin to accrue for each day that the violation continues.
However, the ordering and assessment of any resulting penalties are not self-enforcing. That is, in order to obtain relief, the EPA must file a civil action, and if the EPA prevails, the actual penalties assessed are left to the discretion of the court. The maximum possible fine is based on the terms of the compliance order, but as the 11th Circuit Court of Appeals held in Tyson Foods  , the judgment for relief should consider the five statutory factors enumerated by congress in its 1987 amendment of the CWA . A . The court has complete discretion in determining the weight, if any, it gives to each of the factors  . It is often the case that the fines levied against a losing party are much less than the maximum determined by the compliance order’s formula. Thus, because so much is left to the judgment of the court, pre-Sackett jurisprudence held that compliance orders themselves were not final, and that judicial review was not available to violators prior to the commencement of an enforcement action.
In March, the Supreme Court reversed prior precedent when it determined that the Sacketts may seek judicial review to challenge the compliance order they were issued by EPA for CWA violations stemming from backfilling wetlands without first obtaining a permit. While Sackett does not proscribe EPA’s use of compliance orders going forward, it will likely change the way in which they are used. One of the great benefits of the orders, which do not require court approval, was the efficiency with which they enabled EPA to respond to statutory violations. Litigation is often lengthy and expensive under any statute, and the solutions offered by compliance orders are particularly appealing considering the urgent nature of many CWA violations. The CWA exists to prevent unpermitted discharges into the nation’s navigable waterways, and violations of the Act have the potential to cause immediate and irreparable harm to both humans and the environment. It is difficult or impossible, for example, to remediate runoff from a Confined Animal Feeding Operation (CAFO) or spillover from a factory once they enter a waterway. Compliance orders, of which the EPA issues approximately three thousand a year,  can be quickly administered and give violators instant incentive to make immediate change.
In addition to the swiftness with which compliance orders achieve results, the ease of issuance helped to stretch EPA’s limited enforcement resources. The EPA prefaced its own 2009 Clean Water Action Plan  with a statement of enforcement shortcomings. At the federal level, EPA’s enforcement activities focus generally on monitoring state regulation of the largest dischargers. Unfortunately, the states’ efforts are woefully inadequate; in 2009, for example, states took enforcement action in less than six percent of cases of serious noncompliance. Two years later, in December of 2011, the Agency’s Inspector General candidly admitted that the problem with enforcement continues, and that the EPA must improve its oversight of state enforcement. Specially, the report stated that “…state enforcement programs frequently do not meet national goals and states do not always take necessary enforcement actions.”  Clearly already overextended, it is likely that the EPA will issue many fewer compliance orders if it faces the threat of immediate litigation.
While the Sackett decision will potentially have resounding effects, its scope does not extend to all aspects of EPA’s enforcement. As Justice Ginsburg highlighted in her concurrence, administration of compliance orders under statutes that explicitly ban pre-enforcement review, such as CERCLA, will be unaffected. However, other statutes, including the Clean Water Act and the Clean Air Act (CAA), do not explicitly reserve judicial review for the enforcement stage. The Agency also remains free to seek relief, both monetary and injunctive, through the courts, but this remedy continues to be cumbersome and expensive. In addition, suits brought by private citizens are still an option, but remain rare and hindered by impediments such as establishing standing.
The EPA may of course still issue compliance orders, but following Sackett these could, and probably will, involve litigation, at least under affected statutes such as the Clean Water Act. Therefore, the Agency will be less apt to administer the orders in cases not involving obvious statutory violations. The existing standard, under which an order could be issued based on “any information available” to the administrator, will likely be rendered a technicality, as the Agency will be hesitant to proceed without substantial and timely investigation. The result is that the utility of compliance orders, once an effective way to quickly inform a party of its violation and the necessary steps to remediation, will be limited, leaving the EPA without an option for expedient and timely intervention.
— Megan Anderson is a Notes Editor on MJEAL. She can be reached at firstname.lastname@example.org.
5. 33 U.S.C. § 1319(d). The five factors are: 1) the seriousness of the violation or violations, 2) the economic benefit (if any) resulting from the violation, 3) any history of such violations, 4) any good-faith efforts to comply with the applicable requirements, and 5) the economic impact of the penalty on the violator