Ninth Circuit Agrees With Other Circuits In Barring Pre-Enforcement Challenges To Clean Water Act Administrative Compliance Orders

The U. S. Court of Appeals for the Ninth Circuit has joined the Fourth, Sixth, Seventh and Tenth Circuits in holding that the Clean Water Act precludes pre-enforcement review of compliance orders alleging violations of the Act. Court RulingIn an opinion issued September 17, 2010 (Sackett v. EPA), the court ruled that landowners who had allegedly violated the Clean Water Act by filling in their property without first obtaining a permit could not challenge the compliance order until EPA started an enforcement action in federal court.


The Clean Water Act gives EPA three civil enforcement options when it identifies a violation: (1) assessment of a civil penalty; (2) initiation of a civil enforcement action in federal district court; and (3) issuance of an administrative compliance order. In what it characterized as “an issue of first impression in our circuit,” the court acknowledged that the Clean Water Act “does not expressly preclude pre-enforcement judicial review of such compliance orders.” In its analysis of whether the Act impliedly precludes pre-enforcement review, the court looked to the structure of the Clean Water Act’s statutory scheme. Because the Act gives EPA the choice of issuing a compliance order or bringing a civil action, allowing pre-enforcement review would eliminate that choice “by enabling those subject to a compliance order to force EPA to litigate all compliance orders in court.” Additionally, because no sanctions can be imposed for noncompliance with a compliance order until EPA brings a civil enforcement action, the court inferred “that Congress intended that all challenges to the compliance order be brought in one proceeding.” Finally, the court stated that “Congress’s express grant of judicial review for administrative penalties helps to persuade us that the absence of a similar grant of judicial review for compliance orders was an intentional omission that must be respected.”

The court also considered the objectives of the statutory scheme and the Act’s legislative history. Agreeing with other courts who had decided those issues, the court concluded that the aim of compliance orders was to allow EPA to address environmental problems quickly without becoming immediately entangled in litigation and that similar provisions of the Clean Air Act, on which the Act was modeled, support the disallowance of pre-enforcement review.

The landowners argued that preclusion of pre-enforcement review violated their due process rights, for two reasons. First, they claimed that without pre-enforcement review, penalties could be assessed for violation of a compliance order even if the order were later judged to be invalid.

The court rejected this interpretation of the Act, stating: “Read carefully, this provision does not authorize EPA to bring enforcement actions for mere violations of compliance orders. Rather, to enforce a compliance order, the EPA must bring an action alleging a violation of the CWA itself . . . [A] court cannot assess penalties for violation of a compliance order . . . unless the EPA also proves, by a preponderance of the evidence, that the defendants actually violated the CWA in the manner alleged.”
Second, they argued that pre-enforcement review was necessary because of the “frightening penalties” they risk accruing by refusing to comply. The court rejected this contention because any civil penalty amount is ultimately committed to judicial, not EPA, direction and because the landowners could avail themselves of judicial recourse by seeking a permit to fill their property, the denial of which would be immediately appealable to a district court under the Administrative Procedure Act. Based on this decision, private landowners will continue to be faced with the unenviable choice of acquiescing in the compliance order or initiating a permit request whose denial allows immediate judicial review.