Funk on Sackett

Over at RegBlog (an indispensable resource for those interested in regulatory policy), Lewis & Clark Law Professor William Funk comments on the stakes in the Sackett case:

Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, substantial harm to the environment may occur even if EPA eventually prevails. Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end. However, this fear is unfounded. The Administrative Procedure Act is clear that obtaining judicial review of a compliance order does not by itself relieve a person from the requirement to comply with that order pending judicial review. Instead, that Act provides that a person may seek a stay of the order first from the agency and then from the court if the agency denies the request, but that request will be judged on its own merits. For example, with respect to the Sacketts, it is unlikely a court would stay EPA’s order to cease and desist from further damage to the alleged wetlands, but it might well stay the requirement that the Sacketts restore the wetlands until a determination of the validity of EPA’s order. Thus, the judicial review the Sacketts seek would not enable continued harm to the environment during the review proceedings.

One need not view EPA as a rogue agency – or even as Dirty Harry – to appreciate the need for providing a judicial check on agency action. Even in good faith EPA has made errors in the past, and it and will again in the future; after all, it is staffed by humans. Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA officials to ensure that their decisions are based on sound facts and law that will be readily upheld in courts. Absent that incentive, the tendency noted by Lord Acton – that power tends to corrupt and absolute power corrupts absolutely – could lead an agency to rely more on coercion than law. It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.

Here are my prior posts on the Sackett case: