US Supreme Court Issues Highly Anticipated Sackett Opinion on EPA Actions

The United States Supreme Court heard oral argument in Sackett v. EPA on January 9, 2012. And today, just over two months later, the Court has already issued its unanimous opinion, authored by Justice Scalia. For a full copy of the opinion, please click here. The Sackett decision is a highly anticipated one, as it may impact other actions that the EPA has taken regarding hydraulic fracturing activities.

Sackett involves a couple, the Sacketts, who own a 0.63-acre lot in Idaho, part of which they filled in with dirt and rock in preparation for building a home. The EPA issued a compliance order against the Sacketts, alleging that their land was a wetland subject to the Clean Water Act (“CWA”) and that the Sacketts violated the CWA by filling in their property without a permit. The order required the Sacketts to remove the material and restore their land to its original condition, and warned that violation of the order may subject the Sacketts to civil penalties of up to $75,000 per day.

The Sacketts filed suit in U.S. District Court, challenging the finding that their land was subject to the CWA and seeking declaratory and injunctive relief. The Sacketts brought suit under Chapter 7 of the Administrative Procedure Act (APA) which provides judicial review of “final agency action” for which there is no adequate remedy other than APA review. After the District Court granted the EPA’s motion to dismiss for lack of subject-matter jurisdiction, the Sacketts appealed. The Ninth Circuit upheld the district court’s dismissal, concluding that the APA “precludes pre-enforcement judicial review of compliance orders,” and the U.S. Supreme Court granted certiorari.

The Supreme Court’s opinion determines that the EPA’s compliance order constitutes a final agency action. The Court considered that through its order the EPA imposed legal obligations on the Sacketts, limited their rights, exposed them to penalties, and marked the consummation of the agency’s decision-making process. The Court also determined that the Sacketts had no other adequate remedy, considering it had to either comply, pay the imposed penalties, or wait for the EPA to initiate suit while the Sacketts incurred the penalties. Finally, the Court noted that nothing in the CWA precludes judicial review under the APA or otherwise.

Having held that the EPA’s compliance order constituted final agency action for which there was no other adequate remedy, the Court reversed the Ninth Circuit and remanded the case.

Fulbright will be issuing a client alert in the near future with a more thorough review of the case and the alert will be posted here as well.

This article was prepared by Barclay Nicholson ( or 713-651-3662) and Brain Albrecht ( or 713-651-3584) of the Fulbright's Energy Practice and the firm’s Shale and Hydraulic Fracturing Task Force.