In a rare unanimous decision, the US Supreme Court has ruled that pre-enforcement judicial review is available for an administrative compliance order issued by US EPA under Section 309 of the Clean Water Act. Sackett v. EPA, No. 10-1062 (March 21, 2012). The decision, authored by Justice Scalia, with concurring opinions by Justices Ginsburg and Alito, overturns a long string of lower court rulings that such orders can be challenged only if and when US EPA brings a separate action in federal court to enforce against a party’s failure or refusal to comply with the terms and conditions of the order.
Our publication examines the significance of the decision.