Not So Fast: EPA Administrative Orders in a Post-Sackett World

Gain an understanding of the legal basis for administrative orders and how the orders are used.

EPA used to hold all of the cards when it issued an administrative order. A recipient could not challenge the factual or legal basis: it could either perform the remedy or wait for EPA to file an enforcement action and bring these challenges in the context of that action. Such a course had significant risks, because the penalties could be doubled for failing to comply with an order. Just recently, however, in U.S. v. Sackett, the Supreme Court held that administrative orders were ‘final actions' which could be challenged in court under the Administrative Procedure Act. This should force a significant change in how EPA approaches administrative orders in the future. This topic will address the statutory and regulatory background of administrative orders, the Sackett decision and how it will affect compliance negotiations in the future.

Learning Objectives

- You will be able to review legal basis for administrative orders.

- You will be able to discuss how administrative orders were used.

- You will be able to explain what Sackett means for future enforcement actions.

- You will be able to identify practical suggestions going forward.