A CARD LAID IS A CARD PLAYED: EPA IS SUBJECT TO SACKETT REVIEW EVEN AFTER WITHDRAWING AN ENFORCEMENT ORDER

摘要

In Sackett v. EPA, 132 S.Ct. 1367 (2012), the Supreme Court held that pre-enforcement review is available to challenge an order concluding that parties had violated the Clean Water Act by filling a wetland without a permit. Practitioners have wondered whether, in response to Sackett, EPA would take steps to avoid review, such as by issuing warning letters instead of orders. In a recent case, EPA employed another tactic. EPA withdrew an enforcement order, hoping thereby to avoid judicial review under Sackett by claiming that the case was now moot. Not so fast, a court in West Virginia concluded, EPA's position is still reviewable. Alt v. EPA, 2013 WL 5744778 (N.D. W.Va. No. 2:12-CV-42, Oct. 23, 2013).