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Letter to EPA Administrator Lisa Jackson

U.S. Senators Jim Risch and Mike Crapo are calling on the Environmental Protection Agency (EPA) to explain how its enforcement office will handle Clean Water Act cases given the Supreme Court's recent ruling in Sackett v. EPA. The request comes after the director of EPA's water enforcement said in a recent speech that the court's decision will have little effect on the agency and that, "internally, it's same old, same old."

"It is very troubling that an EPA official with water enforcement responsibilities would believe that the Supreme Court's decision in Sackett has little effect on how the agency enforces the Clean Water Act," wrote Crapo, Risch and 14 others in a letter to EPA Administrator Lisa Jackson.

In Sackett v. EPA the Supreme Court ruled unanimously that Clean Water Act compliance orders are subject to judicial review before enforcement. In the majority opinion Justice Scalia noted, "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."

The Senators went on to point out that since EPA issues over 1,000 administrative compliances annually, they do not believe this is an isolated case with "little effect' on EPA's practices. They urged Administrator Jackson to clarify the troubling comments and explain how the agency plans to proceed.

The entire letter is available below.

Dear Administrator Jackson,

We are deeply concerned by remarks made recently by a senior Environmental Protection Agency (EPA) official regarding enforcement practices in light of the Supreme Court's recent ruling in Sackett v. EPA ("Sackett"). In its May 7, 2012 edition Inside EPA reported:

A top EPA official is downplaying the impact of the unanimous High Court ruling that opens up Clean Water Act (CWA) compliance orders to pre-enforcement judicial review, saying it will have little effect on how the agency enforces the water law, while floating several options it is considering for new documents that may be exempt from review. "What's available after Sackett? Pretty much everything that was available before Sackett,' Mark Pollins, director of EPA's water enforcement division, said. [. . .] "Internally, it's same old, same old.'

Additionally, a BNA article from May 4, 2012, "EPA Official Sees No Major Shift In Agency's Use of Compliance Orders," also recounted Mr. Pollins' remarks downplaying the Supreme Court's decision in Sackett. It is very troubling that an EPA official with water enforcement responsibilities would believe that the Supreme Court's decision in Sackett has little effect on how the agency enforces the Clean Water Act.

As you know, in Sackett v. EPA, the Supreme Court held that EPA compliance orders are subject to pre-enforcement review by the federal courts. Compliance orders often declare that the recipient is in violation of law and threaten thousands, or even millions, of dollars in fines for the initial violations followed by thousands or millions of dollars in additional fines for not complying with the "compliance order" itself. Thus, EPA's refusal to agree to such review in the first place left the Sackett family, as it has done to many other Americans, in a state of legal limbo--at risk of substantial civil or criminal penalties if they proceeded with development of their private property but without the ability to seek a court order determining whether EPA was acting in accordance with the Clean Water Act.

Indeed, the Sacketts faced a terrible choice: give into EPA's overreaching involvement by foregoing the reasonable use of their private property, or force EPA's hand by proceeding with development of their property at the risk of bankruptcy or imprisonment. EPA afforded them no opportunity to seek a neutral arbiter's evaluation of EPA's assertion of jurisdiction. No American should be faced with that choice. In fact, the Supreme Court's 9-0 ruling strongly demonstrates the absurdity of EPA's position in this case. Regrettably, we do not believe this is an isolated case with "little effect" on EPA's practices. To the contrary, as the Wall Street Journal explained in a March 22, 2012 editorial, "The ordeal of the Sacketts shows once again how [EPA] with a $10 billion budget and 17,000 agents has become a regulatory tyranny for millions of law-abiding Americans." The Congressional Research Service recently found that EPA issues over 1,000 administrative compliance orders annually, which provides ample reason to question how Sackett will impact the agency's approach to CWA enforcement

The Court's decision points toward a broader concern: EPA should not use its enforcement authority to intimidate citizens into compliance. As Justice Scalia noted in the majority opinion, "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 judicial review." Nevertheless, as evidenced by these comments made by Mr. Pollins, it seems that EPA plans to continue business as usual and sees no need to change their use of compliance orders in response to the Court's holding. In order to help us understand the steps the EPA is taking following the Sackett decision, we request you clarify the comments made by Mr. Pollins and explain how the agency's enforcement office plans to proceed in pursing CWA enforcement in light of Sackett.

Thank you for your prompt attention to this matter.

Sincerely,

Senator Jim Inhofe (R-Oklahoma)

Senator Mitch McConnell (R-Kentucky)

Senator Jim Risch (R- Idaho)

Senator Mike Crapo (R- Idaho)

Senator Lisa Murkowski (R-Alaska)

Senator Jeff Sessions (R-Alabama)

Senator David Vitter (R-Louisiana)

Senator John Barrasso (R-Wyoming)

Senator Lamar Alexander (R-Tennessee)

Senator Mike Johanns (R-Nebraska)

Senator John Boozman (R-Arkansas)

Senator Marco Rubio (R-Florida)

Senator Dean Heller (R-Nevada)

Senator Rand Paul (R-Kentucky)

Senator John Hoeven (R-North Dakota)

Senator Mike Lee (R-Utah)


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