Suit Tests 'Due Process' Claim Against CWA Jurisdiction Determinations

摘要

Industry plaintiffs are preparing to file a new complaint in an ongoing suit where a federal judge will consider claims that the Due Process Clause of the Constitution allows pre-enforcement review of administrative determinations that waterbodies are "jurisdictional" and subject to the Clean Water Act (CWA) - an argument courts, including the Supreme Court, have thus far sidestepped. A decision in the plaintiffs' favor could be a major step forward for conservatives who have thus far been unable to secure a ruling that an agency's finding that waters are jurisdictional creates an "injury" that can be the subject of a suit. Instead, courts have ruled that the jurisdictional determinations (JDs) can only be challenged after the agency begins formal enforcement proceedings, even after the Supreme Court held in Sackett v. EPA that many EPA compliance orders must be open to court challenge. The high court in Sackett, however, declined to address due-process arguments.