Pre-enforcement Review? Not Enough. How About Pre-issuance Review?

In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the Administrative Procedure Act.  Now, in Ron Foster v. EPA, Judge John Copenhaver of the Southern District of West Virginia has ruled that Sackett’s victory was in fact hollow, and that the due process rights due processof subjects of EPA’s enforcement orders are only satisfied:

if some form of hearing [occurs] before an individual is finally deprived of a property interest.

In short, Judge Copenhaver concluded that the practical import of an EPA enforcement order, by paralyzing the subject’s business and threatening massive civil penalties, is such that it constitutes a deprivation of property, which provides a basis for a due process claim.  He next concluded that the remedy identified in Sackett, judicial review under the APA, is not sufficient to vindicate the due process rights of those to whom orders are issued.

I’m skeptical.

I understand that the constitutional question was not decided in Sackett, but it’s difficult for me to believe that the Court would have spent as much time and effort as it did vindicating Sackett’s right to pre-enforcement review if it were really true that the remedy identified by the Court – post-issuance suit under the APA – was insufficient to cure an underlying due process violation caused by the very issuance of the order.  While Justice Alito raised the constitutional specter (and Judge Copenhaver cites frequently to Alito’s concurrence), even he did not suggest that some kind of hearing is required before an enforcement order can issue.  Justice Alito was instead focused on a different problem – the vagueness of the Clean Water Act jurisdictional provisions.

Much of the discussion in Sackett addressed whether issuance of an order was final agency action, and it clearly is.  However, Judge Copenhaver takes that same discussion and uses it as the basis for concluding that the issuance of an order deprives the subject of an order of a substantial property interest.  I just don’t see the Supreme Court going that far.

When Sackett was issued, the immediate question was the extent of its reach.  If Ron Foster v. EPA is widely followed, Sackett would be a speck of dust in comparison.  Because it is a constitutional holding, it would apply not just to the Clean Air Act, which has order authority like that of the CWA, but also to CERCLA, even though CERCLA specifically states that pre-enforcement review is not available.  Indeed, statutes outside the environmental realm, if they provide for the issuance of enforcement orders, and if that authority is accompanied by authority to impose penalties of sufficient scope to be considered coercive, would also be constitutionally infirm.

I’m not buying it – at least until a higher authority joins Judge Copenhaver in his quest to protect 5th Amendment rights.

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