Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

تمرين 19

FACTS The Clean Water Act (Act) prohibits ''the discharge of any pollutant by any person,'' without a permit, into the ''navigable waters,'' which the Act defines as ''the waters of the United States.'' If the Environmental Protection Agency (EPA) determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. When the EPA prevails in a civil action, the Act provides for a civil penalty not to exceed $37,500 per day for each violation. According to the government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000.
The Sacketts own a two-thirds-acre residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but it is separated from the lake by several lots containing permanent structures. In preparation for constructing a house, the Sacketts filled in part of their lot with dirt and rock. Some months later, they received from the EPA a compliance order, which stated that their residential lot contained navigable waters and that their construction project violated the Act by placing fill material on the property. On that basis the order directs them immediately to restore the property pursuant to an EPA work plan and to provide the EPA with access to the site and all records and documents related to the conditions at the site.
The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but that request was denied. They then brought an action in the U.S. District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA's issuance of the compliance order was ''arbitrary [and] capricious'' under the Administrative Procedure Act (APA) and that it deprived them of ''life, liberty, or property, without due process of law,'' in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The U.S. Court of Appeals for the Ninth Circuit affirmed, concluding that the Act ''preclude[s] pre-enforcement judicial review of compliance orders'' and that such preclusion does not violate the Fifth Amendment's due process guarantee. The U.S. Supreme Court granted certiorari.
DECISION The judgment of the Court of Appeals is reversed, and the case is remanded.
OPINION Scalia, J. The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of ''final agency action for which there is no other adequate remedy in a court.'' [Citation.] We consider first whether the compliance order is final agency action. There is no doubt it is agency action, which the APA defines as including even a ''failure to act.'' [Citation.] But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA '''determined''' '''rights or obligations.''' [Citation.] *** Also, '''legal consequences… flow''' from issuance of the order. [Citation.] ***
The issuance of the compliance order also marks the '''consummation''' of the agency's decisionmaking process. [Citation.] As the Sacketts learned when they unsuccessfully sought a hearing, the ''Findings and Conclusions'' that the compliance order contained were not subject to further agency review. ***
The APA's judicial review provision also requires that the person seeking APA review of final agency action have ''no other adequate remedy in a court,'' [Citation.] In Clean Water Act enforcement cases, judicial review ordinarily comes by way of a civil action brought by the EPA under [citation]. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue *** an additional $75,000 in potential liability. The other possible route to judicial review-applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied- will not serve either. ***
Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in determining ''[w]hether and to what extent a particular statute precludes judicial review,'' we do not look ''only [to] its express language.'' [Citation.] The APA, we have said, creates a ''presumption favoring judicial review of administrative action,'' but as with most presumptions, this one ''may be overcome by inferences of intent drawn from the statutory scheme as a whole. The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review. [The Supreme Court found that these arguments did not support an inference that the Clean Water Act's statutory scheme precluded APA review.]
***
We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
INTERPRETATION The APA provides for judicial review of final agency action for which there is no other adequate remedy in a court unless another statute precludes judicial review.
CRITICAL THINKING QUESTION What policy reasons support and which oppose the requirement for final agency action prior to judicial review?