In June of this year, one of my partners Greg Young and I will be speaking at the AGC Environmental Conference in Washington, DC. Our panel discussion will focus on the dangerous intersections between construction law and environmental law. One of those crossroads is the applicability of the Clean Water Act to construction projects.
Yesterday, the United States Supreme Court handed down a unanimous decision in the closely watched case of Sackett v. Environmental Protection Agency. Reversing the courts below, the Supreme Court held the Sacketts have the right to challenge an EPA decision that their property contained wetlands:
“[T]here is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.”
The Clean Water Act does not preclude judicial review under the Administrative Procedures Act (APA) and, thus, the Court remanded the case to allow the Sacketts to bring a civil action under the APA to challenge the issuance of the EPA’s order.
For transportation and other development projects, which frequently have to deal with issues of wetlands jurisdiction, this decision will hopefully lead to a process where EPA jurisdiction can be challenged up front and early in the planning process rather than waiting for the EPA to assert a violation after the fact, as it did with the Sacketts. No doubt, the decision will also have a dramatic impact on EPA’s actions to demand administrative compliance.