Recent Federal Court Decisions Curtail EPA's Clean Water Act Authority

This advisory discusses implications from two recent federal court decisions involving the exercise of authority by the U.S. Environmental Protection Agency ("EPA" or "Agency") under the Clean Water Act ("CWA" or "Act"). In Sackett v. EPA the U.S. Supreme Court unanimously held that the Act does not preclude pre-enforcement judicial review of CWA compliance orders, thereby imposing significant limitations on an oft-used and much maligned EPA enforcement tool. A couple of days later, the U.S. District Court for the District of Columbia held in Mingo Logan Coal Co., Inc. v. EPA that the Agency exceeded its CWA authority when it unilaterally withdrew permission to discharge fill material from coal mining operations at certain disposal sites set out in an Army Corps of Engineers National Pollutant Discharge Elimination System permit. Viewed together, these two cases impose significant limitations on the Agency's view of its powers under the Act and serve as a signal to EPA that it needs to be more judicious when exercising such powers.