Amicus Brief in Sackett v. EPA on Behalf of Mountain States Legal Foundation

Abstract

Mountain States Legal Foundation filed an amicus brief demonstrating two straightforward reasons why judicial review of compliance orders is required: (1) judicial review is available under the Administrative Procedure Act (“APA”), because the Clean Water Act (“CWA”) does not “expressly” preclude review; (2) Congress did not intend to preclude judicial review of compliance orders that assert jurisdiction based on factually intensive analysis.Because the CWA was enacted subsequent to the APA, section 12 of the APA (5 U.S.C. § 559) requires that any modification of the judicial review provisions of the APA must be “expressly” stated in the CWA. Here, the Ninth Circuit entirely ignored the controlling significance of the fact that the CWA does not expressly preclude immediate judicial review of compliance orders. Instead, the Ninth Circuit focused on “fairly discernable” inferences gleaned from the CWA. The Ninth Circuit’s approach violates the plain language of the APA and the Court’s precedents.Moreover, the Ninth Circuit’s conclusion that the structure of the CWA, its objectives, its legislative history, and the nature of compliance orders all indicate that the CWA forecloses immediate judicial review is plainly in error. By analyzing the statutory scheme in a vacuum, the Ninth Circuit failed to recognize that the EPA has expanded its jurisdiction to such an extent that denying immediate judicial review of compliance orders in this context is inconsistent with Congressional intent in passing the CWA.