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Supreme Court Holds Landowners May Seek Pre-Enforcement Judicial Review in Clean Water Act Enforceme

In a major victory for the regulated community, the Supreme Court ruled unanimously this week that property owners facing potential enforcement actions under the Clean Water Act may seek pre-enforcement judicial review of administrative compliance orders (ACO). The decision clarifies that landowners may challenge an ACO that claims they are in violation of the Clean Water Act because they filled wetlands without obtaining a permit. The Environmental Protection Agency and the Army Corps of Engineers have traditionally relied on ACOs (which subject landowners to significant liability) to encourage them to come into compliance quickly (i.e., before any judicial process).

Prior to the ruling, those receiving ACOs, but believing their property did not contain a wetland, had no way to challenge an agency determination to the contrary in court. Rather, landowners were forced to defy the ACO and await the initiation of a federal enforcement action before challenging the jurisdiction on which the ACO was based. The court held such landowners should be able to contest agency findings under the Administrative Procedure Act. Writing for the Court, Justice Scalia explained that Act’s “presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all,” and that there is “no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance.'” The full Opinion is available at http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf.

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