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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1062
_________________
Chantell Sackett, et vir, PETITIONERS
v. Envi- ronmental Protection Agency, et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[March 21, 2012]
Justice Scalia delivered the opinion of the
Court.
We consider whether Michael and Chantell Sackett
may bring a civil action under the Administrative Procedure Act, 5
U. S. C. §500
et seq., to challenge the
issuance by the Environmental Protection Agency (EPA) of an
administrative compliance order under §309 of the Clean Water
Act, 33 U. S. C. §1319. The order asserts that the
Sacketts’ property is subject to the Act, and that they have
violated its provisions by placing fill material on the property;
and on this basis it directs them immediately to restore the
property pursuant to an EPA work plan.
I
The Clean Water Act prohibits, among other
things, “the discharge of any pollutant by any person,”
§1311, without a permit, into the “navigable
waters,” §1344—which the Act defines as “the
waters of the United States,” §1362(7). If the EPA
determines that any person is in violation of this restriction, the
Act directs the agency either to issue a compliance order or to
initiate a civil enforcement action. §1319(a)(3). When the EPA
prevails in a civil action, the Act provides for “a civil
penalty not to exceed [$37,500] per day for each
violation.”[
1]
§1319(d). And according to the Government, when the EPA
prevails against any person who has been issued a compliance order
but has failed to comply, that amount is increased to
$75,000—up to $37,500 for the statutory violation and up to
an additional $37,500 for violating the compliance order.
The particulars of this case flow from a dispute
about the scope of “the navigable waters” subject to
this enforcement regime. Today we consider only whether the dispute
may be brought to court by challenging the compliance
order—we do not resolve the dispute on the merits. The reader
will be curious, however, to know what all the fuss is about. In
United States v.
Riverside Bayview Homes, Inc.,
474 U.S.
121 (1985), we upheld a regulation that construed “the
navigable waters” to include “freshwater
wetlands,”
id., at 124, themselves not actually
navigable, that were adjacent to navigable-in-fact waters. Later,
in
Solid Waste Agency of Northern Cook Cty. v.
Army Corps
of Engineers,
531 U.S.
159 (2001), we held that an abandoned sand and gravel pit,
which “seasonally ponded” but which was not adjacent to
open water,
id., at 164, was not part of the navigable
waters. Then most recently, in
Rapanos v.
United
States,
547 U.S.
715 (2006), we considered whether a wetland not adjacent to
navigable-in-fact waters fell within the scope of the Act. Our
answer was no, but no one rationale commanded a majority of the
Court. In his separate opinion, The Chief Justice expressed the
concern that interested parties would lack guidance “on
precisely how to read Congress’ limits on the reach of the
Clean Water Act” and would be left “to feel their way
on a case-by-case basis.”
Id., at 758 (concurring
opinion).
The Sacketts are interested parties feeling
their way. They own a 2∕3-acre residential lot in Bonner
County, Idaho. Their property lies just north of Priest Lake, but
is separated from the lake by several lots containing permanent
structures. In preparation for constructing a house, the Sacketts
filled in part of their lot with dirt and rock. Some months later,
they received from the EPA a compliance order. The order contained
a number of “Findings and Conclusions,” including the
following:
“1.4 [The Sacketts’
property] contains wetlands within the meaning of 33
C. F. R. §328.4(8)(b); the wetlands meet the
criteria for jurisdictional wetlands in the 1987 ‘Federal
Manual for Identifying and Delineating Jurisdictional
Wetlands.’
“1.5 The Site’s wetlands
are adjacent to Priest Lake within the meaning of 33
C. F. R. §328.4(8)(c). Priest Lake is a
‘navigable water’ within the meaning of section 502(7)
of the Act, 33 U. S. C. §1362(7), and ‘waters
of the United States’ within the meaning of 40
C. F. R. §232.2.
“1.6 In April and May, 2007,
at times more fully known to [the Sacketts, they] and/or persons
acting on their behalf discharged fill material into wetlands at
the Site. [They] filled approximately one half acre.
. . . . .
“1.9 By causing such fill
material to enter waters of the United States, [the Sacketts] have
engaged, and are continuing to engage, in the ‘discharge of
pollutants’ from a point source within the meaning of
sections 301 and 502(12) of the Act, 33 U. S. C.
§§1311 and 1362(12).
. . . . .
“1.11 [The Sacketts’]
discharge of pollutants into waters of the United States at the
Site without [a] permit constitutes a violation of section 301 of
the Act, 33 U. S. C. §1311.” App.
19–20.
On the basis of these findings and conclusions,
the order directs the Sacketts, among other things,
“immediately [to] undertake activities to restore the Site in
accordance with [an EPA-created] Restoration Work Plan” and
to “pro- vide and/or obtain access to the Site
. . . [and] access to all records and documentation
related to the conditions at the Site . . . to EPA
employees and/or their designated representatives.”
Id., at 21–22, ¶¶2.1, 2.7.
The Sacketts, who do not believe that their
property is subject to the Act, asked the EPA for a hearing, but
that request was denied. They then brought this action in the
United States District Court for the District of Idaho, seeking
declaratory and injunctive relief. Their complaint contended that
the EPA’s issuance of the compliance order was
“arbitrary [and] capricious” under the Administrative
Procedure Act (APA), 5 U. S. C. §706(2)(A), and that
it deprived them of “life, liberty, or property, without due
process of law,” in violation of the Fifth Amendment. The
District Court dismissed the claims for want of subject- matter
jurisdiction, and the United States Court of Appeals for the Ninth
Circuit affirmed, 622 F.3d 1139 (2010). It concluded that the Act
“preclude[s] pre-enforcement judicial review of compliance
orders,”
id., at 1144, and that such preclusion does
not violate the Fifth Amendment’s due process guarantee,
id., at 1147. We granted certiorari. 564 U. S. ___
(2011).
II
The Sacketts brought suit under Chapter 7 of
the APA, which provides for judicial review of “final agency
action for which there is no other adequate remedy in a
court.” 5 U. S. C. §704. We consider first
whether the compliance order is final agency action. There is no
doubt it is agency action, which the APA defines as including even
a “failure to act.” §§551(13), 701(b)(2). But
is it
final? It has all of the hallmarks of APA finality
that our opinions establish. Through the order, the EPA
“ ‘determined’ ”
“ ‘rights or ob- ligations.’ ”
Bennett v.
Spear,
520 U.S.
154, 178 (1997) (quoting
Port of Boston Marine Terminal
Assn. v.
Re- deriaktiebolaget Transatlantic,
400 U.S.
62, 71 (1970)). By reason of the order, the Sacketts have the
legal obligation to “restore” their property according
to an agency-approved Restoration Work Plan, and must give the EPA
access to their property and to “records and documentation
related to the conditions at the Site.” App. 22, ¶2.7.
Also, “ ‘legal consequences . . .
flow’ ” from issuance of the order.
Bennett,
supra, at 178 (quoting
Marine
Terminal,
supra, at 71). For one, according to the
Government’s current litigating position, the order exposes
the Sacketts to double penalties in a future enforcement
proceeding.[
2] It also severely
limits the Sacketts’ ability to obtain a permit for their
fill from the Army Corps of Engineers, see 33 U. S. C.
§1344. The Corps’ regulations provide that, once the EPA
has issued a compliance order with respect to certain property, the
Corps will not process a permit application for that property
unless doing so “is clearly appropriate.” 33 CFR
§326.3(e)(1)(iv) (2011).[
3]
The issuance of the compliance order also marks
the “ ‘consummation’ ” of the
agency’s decisionmaking process.
Bennett,
supra, at 178 (quoting
Chicago & Southern Air Lines,
Inc. v.
Waterman S. S. Corp.,
333
U.S. 103, 113 (1948)). As the Sacketts learned when they
unsuccessfully sought a hearing, the “Findings and
Conclusions” that the compliance order contained were not
subject to further agency review. The Government resists this
conclusion, pointing to a portion of the order that invited the
Sacketts to “engage in informal discussion of the terms and
requirements” of the order with the EPA and to inform the
agency of “any allegations [t]herein which [they] believe[d]
to be inaccurate.” App. 22–23, ¶2.11. But that
confers no entitlement to further agency review. The mere
possibility that an agency might reconsider in light of
“informal discussion” and invited contentions of
inaccuracy does not suffice to make an otherwise final agency
action nonfinal.
The APA’s judicial review provision also
requires that the person seeking APA review of final agency action
have “no other adequate remedy in a court,” 5
U. S. C. §704. In Clean Water Act enforcement cases,
judicial review ordinarily comes by way of a civil action brought
by the EPA under 33 U. S. C. §1319. But the Sacketts
cannot initiate that process, and each day they wait for the agency
to drop the hammer, they accrue, by the Government’s telling,
an additional $75,000 in potential liability. The other possible
route to judicial review—applying to the Corps of Engineers
for a permit and then filing suit under the APA if a permit is
denied—will not serve either. The remedy for denial of action
that might be sought from one agency does not ordinarily provide an
“adequate remedy” for ac- tion already taken by another
agency. The Government, to its credit, does not seriously contend
that other available remedies alone foreclose review under
§704. Instead, the Government relies on §701(a)(1) of the
APA, which excludes APA review “to the extent that [other]
statutes preclude judicial review.” The Clean Water Act, it
says, is such a statute.
III
Nothing in the Clean Water Act
expressly precludes judicial review under the APA or
otherwise. But in determining “[w]hether and to what extent a
particular statute precludes judicial review,” we do not look
“only [to] its express language.”
Block v.
Community Nutrition Institute,
467 U.S.
340, 345 (1984). The APA, we have said, creates a
“presumption favoring judicial review of administrative
action,” but as with most presumptions, this one “may
be overcome by inferences of intent drawn from the statutory scheme
as a whole.”
Id., at 349. The Government offers
several reasons why the statutory scheme of the Clean Water Act
precludes review.
The Government first points to 33
U. S. C. §1319(a)(3), which provides that, when the
EPA “finds that any person is in violation” of certain
portions of the Act, the agency “shall issue an order
requiring such person to comply with [the Act], or . . .
shall bring a civil action [to enforce the Act].” The
Government argues that, because Congress gave the EPA the choice
between a judicial proceeding and an administrative action, it
would undermine the Act to allow judicial review of the latter. But
that argument rests on the question-begging premise that the
relevant difference between a compliance order and an enforcement
proceeding is that only the latter is subject to judicial review.
There are eminently sound reasons other than insulation from
judicial review why compliance orders are useful. The Government
itself suggests that they “provid[e] a means of notifying
recipients of potential vio- lations and quickly resolving the
issues through volun- tary compliance.” Brief for Respondents
39. It is entirely consistent with this function to allow judicial
review when the recipient does not choose “voluntary
compliance.” The Act does not guarantee the EPA that issuing
a compliance order will always be the most effective choice.
The Government also notes that compliance orders
are not self-executing, but must be enforced by the agency in a
plenary judicial action. It suggests that Congress therefore viewed
a compliance order “as a step in the deliberative process[,]
. . . rather than as a coercive sanction that itself must
be subject to judicial review.”
Id., at 38. But the
stocktickerAPA provides for judicial review of all final agency
actions, not just those that impose a self-executing sanction. And
it is hard for the Government to defend its claim that the issuance
of the compliance order was just “a step in the deliberative
process” when the agency rejected the Sacketts’ attempt
to obtain a hearing and when the
next step will either be
taken by the Sacketts (if they comply with the order) or will
involve judicial, not administrative, deliberation (if the EPA
brings an enforcement action). As the text (and indeed the very
name) of the compliance order makes clear, the EPA’s
“deliberation” over whether the Sacketts are in
violation of the Act is at an end; the agency may still have to
deliberate over whether it is confident enough about this
conclusion to initiate litigation, but that is a separate
subject.
The Government further urges us to consider that
Congress expressly provided for prompt judicial review, on the
administrative record, when the EPA assesses administrative
penalties after a hearing, see §1319(g)(8), but did not
expressly provide for review of compliance orders. But if the
express provision of judicial review in one section of a long and
complicated statute were alone enough to over- come the APA’s
presumption of reviewability for all final agency action, it would
not be much of a presumption at all.
The cases on which the Government relies simply
are not analogous. In
Block v.
Community Nutrition
Institute,
supra, we held that the Agricultural
Marketing Agreement Act of 1937, which expressly allowed milk
handlers to obtain judicial review of milk market orders, precluded
review of milk market orders in suits brought by milk
consumers. 467 U. S., at 345–348. Where a statute
provides that particular agency action is reviewable at the
instance of one party, who must first exhaust administrative
remedies, the inference that it is not reviewable at the instance
of other parties, who are not
subject to the administrative
process, is strong. In
United States v.
Erika, Inc.,
456 U.S.
201 (1982), we held that the Medicare statute, which expressly
provided for judicial review of awards under Part A, precluded
review of awards under Part B.
Id., at 206–208. The
strong parallel between the award provisions in Part A and Part B
of the Medicare statute does not exist between the issuance of a
compliance order and the assessment of administrative penalties
under the Clean Water Act. And in
United States v.
Fausto,
484 U.S.
439 (1988), we held that the Civil Service Reform Act, which
expressly excluded certain “nonpreference” employees
from the statute’s review scheme, precluded review at the
instance of those employees in a separate Claims Court action.
Id., at 448–449. Here, there is no suggestion that
Congress has sought to exclude compliance-order recipients from the
Act’s review scheme; quite to the contrary, the
Government’s case is premised on the notion that the
Act’s primary review mechanisms are open to the Sacketts.
Finally, the Government notes that Congress
passed the Clean Water Act in large part to respond to the
inefficiency of then-existing remedies for water pollution.
Compliance orders, as noted above, can obtain quick remediation
through voluntary compliance. The Government warns that the EPA is
less likely to use the orders if they are subject to judicial
review. That may be true—but it will be true for all agency
actions subjected to judicial review. The APA’s presumption
of judicial review is a repudiation of the principle that
efficiency of regulation conquers all. And there is no reason to
think that the Clean Water Act was uniquely designed to enable the
strong-arming of regulated parties into “voluntary
compliance” without the opportunity for judicial
review—even judicial review of the question whether the
regulated party is within the EPA’s jurisdiction. Compliance
orders will remain an effective means of securing prompt voluntary
compliance in those many cases where there is no substantial basis
to question their validity.
* * *
We conclude that the compliance order in this
case is final agency action for which there is no adequate remedy
other than APA review, and that the Clean Water Act does not
preclude that review. We therefore reverse the judgment of the
Court of Appeals and remand the case for further proceedings
consistent with this opinion.
It is so ordered.