PACIFIC LEGAL ~~ J FOUNDATION

January 10, 2020

Administrator Andrew R. Wheeler VIA CERTIFIED MAIL, RETURN RECEIPT U.S. Environmental Protection Agency

Office of Administration

Mail Code 1101A

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Re: Petition for Rule Making for Procedures to Govern

Clean Water Act Compliance Orders

Dear Administrator Wheeler:

Section 309( a) of the Clean Water Act authorizes the Administrator of the

Environmental Protection Agency to issue compliance orders against landowners and other persons for a variety of alleged violations of the Act. Such orders can impose

crushing liability, yet under EPA' s existing regulations, the orders' recipients are

entitled to no notice of their impending issuance, nor any opportunity to contest the bases for such orders.

The enclosed Petition for Rule Making to Establish Notice- and- Hearing Procedures for

Compliance Orders Issued Under Section 309( a) of the Clean Water Act- submitted on behalf of Pacific Legal Foundation as well as Michael and Chantell Sackett, the

successful petitioners in Sackettv. EPA, 566 U.S. 120 ( 2012)- would remedy this " due

process deficit" in EPA's enforcement practice. The proposed rule would guarantee that

persons potentially subject to a compliance order would have the opportunity to defend themselves before the unleashing of such immense coercive and penal power.

In addition to honoring the due process rights of compliance order targets, the

proposed rule would satisfy the President' s recent order that all such objects of agency enforcement be given an opportunity to be heard " regarding the agency' s proposed legal and factual determinations." Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication." Exec. Order

No. 13892, 84 Fed. Reg. 55,239, 55,239, 55,241 ( Oct. 15, 2019).

930 G Street • Sacramento, CA 95814 • plf@pacificlegal. org • 916. 419. 7111 • pacificlegal.org Administrator Andrew R. Wheeler January 10, 2020 Page 2

Pacific Legal Foundation and the Sacketts therefore request EPA's serious consideration and swift adoption of the proposed rule.

Sincerely, r~ Damien M. Schiff Senior Attorney cc: Ms. Susan Bodine, Assistant Administrator,

EPA Office of Enforcement and Compliance Assurance

Mr. Matthew Z. Leopold, EPA General Counsel BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

PETITION FOR RULE MAKING TO ESTABLISH NOTICE- AND-HEARING PROCEDURES FOR COMPLIANCE ORDERS ISSUED UNDER SECTION 309( a) OF THE CLEAN WATER ACT

DAMIEN M. SCHIFF ANTHONY L. FRANÇOIS Pacific Legal Foundation 930 G Street Sacramento, California 95814 Telephone: (916) 419-7111 Email: [email protected] Email: [email protected]

Attorneys for Petitioners Pacific Legal Foundation and Michael and Chantell Sackett TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ii I. INTRODUCTION ...... 5 A. Background on Petitioners ...... 5 B. The Need for Rule Making ...... 7 II. THE PROPOSED RULE ...... 13 III. CONCLUSION ...... 17

i TABLE OF AUTHORITIES

Cases Camp v. Pitts, 411 U.S. 138 (1973) ...... 4, 11 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ...... 11 Connecticut v. Doehr, 501 U.S. 1 (1991) ...... 10 Costle v. Pac. Legal Found., 445 U.S. 198 (1980) ...... 6 Crook v. Yeutter, 932 F.2d 973 (9th Cir. 1991), 1991 WL 78145 ...... 12 Mathews v. Eldridge, 424 U.S. 319 (1976) ...... 3, 10 Metro. Water Dist. v. United States, 628 F. Supp. 1018 (S.D. Cal. 1986) ...... 12 Nat’l Org. for Women v. Soc. Sec. Admin., 736 F.2d 727 (D.C. Cir. 1984) ...... 12 Porter v. Califano, 592 F.2d 770 (5th Cir. 1979) ...... 11 Rapanos v. United States, 547 U.S. 715 (2006) ...... 6-8, 17 Sackett v. EPA, 566 U.S. 120 (2012) ...... 1-3, 6-9, 11, 14, 16-17 Sackett v. EPA, 622 F.3d 1139 ( 9th Cir. 2010), rev’d on other grounds, 566 U.S. 120 (2012) ...... 9 U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (2016) ...... 6, 14, 17-18

ii Statutes 5 U.S.C. § 553(e) ...... 1 5 U.S.C. § 706(2)(F) ...... 4, 11 33 U.S.C. §§ 1251-1388 ...... 1 33 U.S.C. § 1311(a) ...... 7 33 U.S.C. § 1319(a) ...... 1, 8, 10, 13 33 U.S.C. § 1319( a)(1) ...... 10 33 U.S.C. § 1319( a)(4) ...... 10 33 U.S.C. § 1319(a)-(g) ...... 8 33 U.S.C. § 1321(e)(1)(B) ...... 5, 17 33 U.S.C. § 1361( a) ...... 1 33 U.S.C. § 1362( 7) ...... 7 33 U.S.C. § 1362(12)(A) ...... 7 33 U.S.C. § 1364( a) ...... 5, 17 Regulations 40 C.F.R. pt. 22 ...... 5, 14 40 C.F.R. pts. 22-24 ...... 10, 16 40 C.F.R. § 19.4 ...... 9 40 C.F.R. § 22.14 ...... 14 40 C.F.R. § 22.31 ...... 14 Other Authorities Adler, Jonathan H., Wetlands, Property Rights, and the Due Process Deficit in Environmental Law, 2012 Cato Sup. Ct. Rev. 139 ...... 3, 6, 10, 17 Blevins, Ethan W., Life in the Law’s Shadow: Due Process in the World of Rule by Threat, 27 Geo. Mason U. Civ. Rts. L.J. 1 (2016) ...... 8-9

iii Broderick, Gregory T., From Migratory Birds to Migratory Molecules: The Continuing Battle Over the Scope of Federal Jurisdiction under the Clean Water Act, 30 Colum. J. Envtl. L. 473 (2005) ...... 6 Burling, James S., Final Agency Actions and Judicial Review: United States Army Corps of Engineers v. Hawkes Co., 17 Federalist Soc’y Rev. 28 (2016) ...... 6 EPA, Enforcement Annual Results Numbers at a Glance for Fiscal Year 2017, at https://bit.ly/2tpwsEt last visited Jan. 8, 2020) ...... 16 EPA, Office of Inspector Gen., Gold King Mine Release: Inspector General Response to Congressional Requests June 12, 2017) ...... 18 Exec. Order No. 13892, 84 Fed. Reg. 55,239 (Oct. 19, 2019) ...... 1 Ferlo, Albert & Lindley, Tom, Practical Impacts of the Sackett Decision, 42 Envtl. L. 1009 ( 2012) ...... 4, 15 Glaze, Jr., Richard E., A Detailed Look at the Effects of Sackett v. EPA on Administrative Enforcement Orders, 42 Envtl. L. Rep. News & Analysis 11030 (2012) ...... 4, 15-16 Johnston, Craig N., Sackett: The Road Forward, 42 Envtl. L. 993 ( 2012) ...... 8, 13 Osler, Tori, Note & Comment, Environmental Protection Agency’s Enforcement Mechanisms after Sackett v. EPA, 50 Idaho L. Rev. 65 (2014) ...... 3-4, 8, 14-15, 17 Polk, Alexandria A., Comment, The Clean Water Act and Evolving Due Process: The Emergence of Contemporary Enforcement Procedures, 65 Okla. L. Rev. 717 ( 2013) ...... 9 Rabkin, Jeremy A., Against the EPA, Absurdity Is No Defense, 37 Harv. J.L. & Pub. Pol’y 41 (2014) ...... 14 Safranek, David A., Comment, Sackett v. EPA: Does It Signal the End of Coercive CERCLA Enforcement?, 74 La. L. Rev. 1263 (2014) ...... 16

iv Sater, Jonathan D., Note, Sackett v. EPA: The Murky Confluence of Due Process and Administrative Compliance Orders Under the Clean Water Act, 7 Liberty U. L. Rev. 329 (2013) ...... 5 Schiff, Damien M., Sackett v. EPA: Compliance Orders and the Right of Judicial Review, 2012 Cato Sup. Ct. Rev. 113 ...... 6 Vermeule, Adrian, Reviewability and the “Law of Rules”: An Essay in Honor of Justice Scalia, 92 Notre Dame L. Rev. 2163 (2017) ...... 12-13 Weinberg, Jonathan, The Right To Be Taken Seriously, 67 U. Miami L. Rev. 149 (2012) ...... 15

v Petitioners Pacific Legal Foundation and Michael and Chantell

Sackett submit this petition for rule making under the Administrative

Procedure Act (APA), 5 U.S.C. § 553(e). Petitioners request that the

Environmental Protection Agency ( EPA) enact a regulation providing notice and an opportunity to be heard for the intended recipient of any compliance order proposed to be issued under Section 309(a), 33 U.S.C.

1319(a), of the Clean Water Act ( the Act), id. §§ 1251-1388. See id.

1361( a) ( authorizing regulations necessary to carry out the Act). Last year, President Trump signed Executive Order No. 13892 on “ Promoting the Rule of Law Through Transparency and Fairness in Civil

Administrative Enforcement and Adjudication.” Exec. Order No. 13892,

84 Fed. Reg. 55,239 (Oct. 19, 2019). The order requires executive agencies to provide intended objects of agency enforcement an opportunity to be heard “ regarding the agency’s proposed legal and factual determinations.” Id. at 55,241. Petitioners’ proposed rule would satisfy, at least for purposes of the Clean Water Act’s compliance order regime, the Executive Order’ s requirements.

In Sackett v. EPA, 566 U.S. 120 (2012), the Supreme Court ruled that compliance order recipients—typically, landowners—enjoy the right

1 to immediate judicial review of such orders once issued. Id. at 131. But, at the same time, the Court acknowledged that post-issuance judicial review would not entirely solve the problem posed by the compliance order regime. As recounted by Justice Alito in his concurring Sackett opinion, “the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.” Id. at 132 ( Alito, J., concurring). Landowners can, however, preserve their property rights and avoid the draconian penalties which lead to the coerced compliance that Justice Alito bemoaned if given an opportunity to present their side, to offer their own evidence, and to demonstrate that a compliance order is not warranted, before any finding of violation is made. Petitioners’ proposed rule, which would ensure that landowners receive notice and a hearing before an order’s issuance, would therefore help to ease the significant burdens that the Clean Water Act imposes.

Such procedures also would protect landowners’ due process rights.

Due process requires notice and a meaningful opportunity to be heard before the government can deprive a person of life, liberty, or property.

2 Mathews v. Eldridge, 424 U.S. 319, 333 (1976). EPA compliance orders, by threatening catastrophic financial penalties for noncompliance,

Sackett, 566 U.S. at 126-27 (majority op.), deprive landowners of the use of their property. See Jonathan H. Adler, Wetlands, Property Rights, and the Due Process Deficit in Environmental Law, 2012 Cato Sup. Ct. Rev.

139, 158 (given the “substantial financial burdens” and other limitations imposed by a compliance order, “it is difficult to see how [such an order] d[oes] not [ e]ffect a deprivation of a cognizable property interest”). Yet

EPA currently has no procedures to ensure notice, much less a hearing, before a Clean Water Act compliance order issues. Id. at 149. “In a nation that values due process, not to mention private property, such treatment is unthinkable.” Sackett, 566 U.S. at 132 ( Alito, J., concurring).

Petitioners therefore propose for EPA’s adoption a rule that would provide landowners notice of the agency’s intent to issue a compliance order, as well as an opportunity to contest the legal and evidentiary bases for the proposed order. These procedures will help to shore up the rights of the regulated public. But they also will help EPA itself in its administration of the Act, by reducing the number of unnecessary or erroneous orders. See Tori Osler, Note & Comment, Environmental

3 Protection Agency’s Enforcement Mechanisms after Sackett v. EPA, 50

Idaho L. Rev. 65, 77, 91 (2014) (additional scrutiny over how EPA issues compliance orders “ adds rationality and equity to EPA’s enforcement scheme and is a significant step towards oversight of EPA”). Cf.

Richard E. Glaze, Jr., A Detailed Look at the Effects of Sackett v. EPA on

Administrative Enforcement Orders, 42 Envtl. L. Rep. News & Analysis

11030, 11036 (2012) (affording judicial review of compliance orders “[n]ot only will this provide a modicum of protection to the regulated community against overreaching, it may even enhance the credibility of the Agency in the long term”); Albert Ferlo & Tom Lindley, Practical

Impacts of the Sackett Decision, 42 Envtl. L. 1009, 1025 (2012) (affording review of compliance orders “ provide[ s] an incentive to EPA . . . to create a more robust and complete record prior to issuing those orders and, perhaps, to proceed with greater caution before acting”). Moreover, because the APA requires de novo review of agency determinations that have not been produced through adequate fact-finding procedures, see

Camp v. Pitts, 411 U.S. 138, 141- 42 ( 1973) ( discussing 5 U.S.C.

706(2)(F)), enacting the proposed rule will secure to the agency the indulgent standard of review that courts typically afford the factual

4 underpinnings of agency orders. Finally, the administrative burden of the proposed rule should be minimal, as EPA already has in place a robust hearing procedure for a variety of enforcement orders, see 40

C.F.R. pt. 22, and will retain the statutory authority to address environmental emergencies outside the notice -and-hearing framework, see 33 U.S.C. §§ 1321(e)(1)(B), 1364(a).

While preserving a clean and healthful environment is an important part of responsible stewardship, preserving individual property rights is an equally, if not more important, goal . . . .”

Jonathan D. Sater, Note, Sackett v. EPA: The Murky Confluence of Due

Process and Administrative Compliance Orders Under the Clean Water

Act, 7 Liberty U. L. Rev. 329, 367 ( 2013). Adoption of the proposed rule would achieve an appropriate balance between these worthy but sometimes competing aims.

I.

INTRODUCTION

A. Background on Petitioners

Pacific Legal Foundation is the nation’s oldest nonprofit legal organization that fights for the protection of property rights and other

5 constitutional liberties in courts throughout the country. PLF attorneys have served as counsel of record in many of the Supreme Court’s Clean

Water Act decisions. See U.S. Army Corps of Eng’rs v. Hawkes Co., 136

S. Ct. 1807 ( 2016); Sackett v. EPA, 566 U.S. 120; Rapanos v. United

States, 547 U.S. 715 ( 2006); Costle v. Pac. Legal Found., 445 U.S. 198

1980). PLF attorneys also have written widely on the threat to property rights and other freedoms posed by the Clean Water Act’s misinterpretation and maladministration. See, e.g., James S. Burling,

Final Agency Actions and Judicial Review: United States Army Corps of

Engineers v. Hawkes Co., 17 Federalist Soc’y Rev. 28 (2016); Damien M.

Schiff, Sackett v. EPA: Compliance Orders and the Right of Judicial

Review, 2012 Cato Sup. Ct. Rev. 113; Gregory T. Broderick, From

Migratory Birds to Migratory Molecules: The Continuing Battle Over the

Scope of Federal Jurisdiction under the Clean Water Act, 30 Colum. J.

Envtl. L. 473 ( 2005). Helping to reduce the Clean Water Act’s “ due process deficit,” Adler, supra, at 141, by giving landowners pre-issuance notice and a hearing, directly serves PLF’s longstanding goal of protecting constitutional liberties from overreaching and unbalanced environmental regulation.

6 Michael and Chantell Sackett were the Petitioners in Sackett v.

EPA, 566 U.S. 120. In 2007, EPA issued a compliance order against the

Sacketts. The order, which in amended form is still in effect today, cites the Sacketts for allegedly having violated the Act’s permitting requirement. The order explains that the Sacketts’ attempted construction of a single-family home in an existing residential subdivision in Priest Lake, Idaho, constitutes the addition of a pollutant to “navigable waters.” The Sacketts were given no formal notice, and no hearing, prior to the compliance order’ s issuance.

B. The Need for Rule Making

The Clean Water Act is the principal federal law governing water quality. The Act’s main proscription forbids the unpermitted discharge of pollutants. See 33 U.S.C. § 1311( a). The statute defines a discharge of pollutants to include the addition of any pollutant to “navigable waters.”

Id. § 1362(12)(A). It in turn defines navigable waters to include “ the waters of the United States,” id. § 1362( 7), which under prior agency interpretation were breathtakingly construed to encompass “ 270– to–300 million acres of swampy lands in the United States, . . . storm drains, roadside ditches, ripples of sand in the desert that may contain water

7 once a year, and lands that are covered by floodwaters once every 100 years.” Rapanos, 547 U.S. at 722 (plurality op.).

The Act provides EPA a number of enforcement mechanisms. See

33 U.S.C. § 1319(a)-(g). Chief among them for purposes of this rule making petition is the Act’s authorization for the Administrator to issue a compliance order whenever, on the basis of any information available to him, he determines that certain provisions of the Act—including the proscription of unpermitted pollutant discharges— have been violated.

See id. § 1319( a).

Obeisance to a compliance order is the normal course for landowners because of the ruinous civil penalties that attend its violation. Sackett, 566 U.S. at 132 (Alito, J., concurring). See Osler, supra, at 80 (“ EPA has moved away from friendly persuasion towards more aggressive enforcement tactics.”) ( emphasis removed); Craig N.

Johnston, Sackett: The Road Forward, 42 Envtl. L. 993, 1005 ( 2012)

Why negotiate . . . when you can just issue an edict[?]”). See also

Ethan W. Blevins, Life in the Law’s Shadow: Due Process in the World of

Rule by Threat, 27 Geo. Mason U. Civ. Rts. L.J. 1, 13 ( 2016) (“ Often, agencies can reach the same results with threats as with formal

8 proceedings that offer procedural safeguards for the regulated parties.”).

Currently, a landowner is liable for up to $37,500 per day for violating such an order, 40 C.F.R. § 19.4 (Table 1), an amount that is in addition to penalties for violation of the Act itself.1 Compliance orders usually require a landowner to embark upon significant remedial work. See

Alexandria A. Polk, Comment, The Clean Water Act and Evolving Due

Process: The Emergence of Contemporary Enforcement Procedures, 65

Okla. L. Rev. 717, 739 ( 2013) (“ Administrative compliance orders required either abatement or limitation of the pollution.”). And orders typically will not be withdrawn unless and until the landowner has paid a penalty. See id. at 764 (“ Although Congress has not authorized compliance orders to carry an immediate fine, the EPA generally attaches the threat of a future fine for noncompliance.”).

1 That being said, civil penalties for the violation of a compliance order can be assessed only if the underlying finding of violation, on which the compliance order is based, is confirmed “ by a district court in an enforcement action according to the traditional rules of evidence and standards of proof.” Sackett v. EPA, 622 F.3d 1139, 1146 (9th Cir. 2010), rev’d on other grounds, 566 U.S. 120 (2012). 9 Neither the Act nor any EPA regulation provides landowners with the categorical right to notice,2 or a pre-issuance hearing. See 33 U.S.C.

1319(a); 40 C.F.R. pts. 22-24; Adler, supra, at 149 (“There is no hearing or other adjudication before [ a compliance order] is issued, nor may a landowner obtain an agency hearing afterwards.”). The absence of such a right raises a significant due process concern. As noted above, due process requires that the government provide a meaningful opportunity to be heard prior to depriving a person of life, liberty, or property.

Mathews, 424 U.S. at 333. A compliance order, once issued, deprives a property owner of the full use and enjoyment of his or her property. Adler, supra, at 157-58 ( discussing Connecticut v. Doehr, 501 U.S. 1 ( 1991)

prejudgment attachment of real property without notice violates due

2 The Act authorizes but does not require EPA to give 30 days’ notice to a person whom EPA has found to have violated a condition within a state- issued Clean Water Act permit. See 33 U.S.C. § 1319( a)(1). The Act does require, however, that if a compliance order is based on violation of the Act’s monitoring and reporting requirements, EPA must give the alleged violator an opportunity to confer with the agency before the order may take effect. See id. § 1319(a)(4). Consistent with these provisions, the proposed rule would govern only the process whereby EPA makes a finding of violation and then issues a compliance order based thereon; the rule does not address the consequences of the finding and the order’s issuance, which are expressly governed by the statute. 10 process)). The constitutional infirmity of the current compliance order regime is clear.

Not only is the status quo constitutionally intolerable for property owners, it also seriously compromises the agency’s ability to defend its orders in court. The APA gives landowners the right of judicial review of compliance orders. Sackett, 566 U.S. at 131. The APA provides, in pertinent part, that a “reviewing court shall” “(2) hold unlawful and set aside agency action, findings, and conclusions found to be”

F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” 5 U.S.C. § 706(2)(F). In Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), the Supreme Court held that “[ d]e novo review . . . is authorized by § 706( 2)(F) . . . when

1] the action is adjudicatory in nature and [ 2] the agency factfinding procedures are inadequate.” Id. at 415. Accord Camp, 411 U.S. at 141-42.

Lower courts have construed Citizens to Preserve Overton Park and

Camp to deem agency fact-finding procedures to be adequate so long as affected parties are given some notice and have a meaningful opportunity to present their case before the agency may act. See Porter v. Califano,

592 F.2d 770, 782-83 ( 5th Cir. 1979) ( de novo review merited because

11 biased officials participated in the agency’s decision-making); Nat’l Org. for Women v. Soc. Sec. Admin., 736 F.2d 727, 745-46 ( D.C. Cir. 1984)

concurrence of Mikva & McGowan, JJ.) (de novo review not merited because the agency procedures were not “ severely defective,” i.e., the parties were given notice, could submit evidence, and could administratively appeal); Crook v. Yeutter, 932 F.2d 973 (9th Cir. 1991)

mem.), 1991 WL 78145, at *2 (de novo review not merited because the agency procedures allowed for submission of evidence, oral presentation, two levels of administrative appeal, and public comment); Metro. Water

Dist. v. United States, 628 F. Supp. 1018, 1024-25 (S.D. Cal. 1986) (de novo review merited because the agency procedures did not comport with due process).

Under these standards, compliance orders are subject to de novo review. [ 1] A Clean Water Act compliance order is adjudicatory: it determines whether, in EPA’s view, the order’s recipient has violated a particular provision of the Act. See, e.g., Adrian Vermeule, Reviewability and the “ Law of Rules”: An Essay in Honor of Justice Scalia, 92 Notre

Dame L. Rev. 2163, 2175-76 (2017) (observing how compliance orders are

targeted agency determinations” akin to “ adjudicative application of

12 general policies”). [ 2] Moreover, as noted above, compliance orders generally are issued without notice and a hearing. Thus, without corrective rule making, the factual findings underpinning EPA compliance orders will be subject to the APA’s vigorous de novo review provision. It is therefore in the agency’s own interest to adopt the proposed rule, which would ensure that compliance orders will be issued only after having been vetted through adequate fact-finding procedures.

See Johnston, supra, at 1007 (“[ EPA] should ensure that the enforcement target has an adequate opportunity to participate in the building of the record, including regarding the proposed remedy.”).

II.

THE PROPOSED RULE

Petitioners propose the following rule:

1. No fewer than 30 days prior to the issuance of a finding of violation and compliance order under Section 309(a) of the Clean Water

Act, the Administrator shall provide notice, and a copy of the proposed finding and order, to the order’ s intended recipient.

2. If the proposed recipient requests a hearing within the 30-day notice period, the Administrator shall proceed under the rules of practice

13 codified at 40 C.F.R. pt. 22, with the proposed finding of violation and compliance order to be treated as a “complaint,” id. §22. 14.

3. If a hearing is requested, the Administrator shall not issue the proposed finding of violation and compliance order unless and until a final order approving the proposed finding and order has been made pursuant to 40 C.F.R. § 22.31.

The benefits of the proposed rule are two-fold.

First, the rule will help protect the rights of compliance order recipients. “[ T]he reach and systemic consequences of the Clean Water

Act remain a cause for concern.” Hawkes Co., 136 S. Ct. at 1817

Kennedy, J., concurring). See Jeremy A. Rabkin, Against the EPA,

Absurdity Is No Defense, 37 Harv. J.L. & Pub. Pol’y 41, 44-45 ( 2014)

Judicial] challenges are hard and dangerous to bring because the EPA threatens people with retaliation.”). Yet the main tool EPA uses to enforce the “ notoriously unclear” Clean Water Act, Sackett, 566 U.S. at

132 ( Alito, J., concurring)— namely, the compliance order, Osler, supra, at 77—is issued without giving recipients a meaningful opportunity to be

14 heard. Providing such an opportunity will help to ensure “ a fair and equitable determination that is expected under the law.” Id. at 95.

Second, the rule will decrease the number of erroneously issued compliance orders. See Osler, supra, at 77. Requiring some degree of vetting and review before an order can issue will increase the likelihood that the order will be justified by the record. See Glaze, supra, at 11036.

See also Jonathan Weinberg, The Right To Be Taken Seriously, 67 U.

Miami L. Rev. 149, 159 ( 2012) (“[ L]egal fact-finders are more likely to reach correct results when the persons immediately affected by the decisions and most knowledgeable about the facts are made familiar with the evidence that their adversaries will present to the fact -finders and are allowed to rebut it and to present their own cases.”). Also, pre-finding review may lead to the earlier involvement of agency officials with a

more developed perspective,” which in turn can result in “more listening, discussion, and resolution.” Ferlo & Lindley, supra, at 1022.

15 On the other side of the ledger, the costs of the proposed rule should be minimal. To begin with, the requirement of notice and an opportunity to be heard is nothing new to EPA; the agency already has an administrative hearing process for adjudicating a variety of proposed enforcement orders. See 40 C.F.R. pts. 22, 24. Cf. Glaze, supra, at 11036

anticipating that “EPA should be able to easily adjust its practices to avoid significant headaches caused by [ Sackett]”). Thus, the proposed rule would entail a mere extension of existing apparatus, rather than the creation of new procedures. 3 Moreover, as it is reasonable to assume that pre-issuance review will reduce the number of post -issuance judicial challenges, affording such pre-issuance review will save money, given the relatively greater costs of district court litigation. See David A. Safranek,

Comment, Sackett v. EPA: Does It Signal the End of Coercive CERCLA

Enforcement?, 74 La. L. Rev. 1263, 1291-92 (2014). Finally, EPA’s ability

3 Moreover, as the Supreme Court suggested in Sackett, there is no reason to expect landowners to contest a compliance order “ in those many cases where there is no substantial basis to question their validity.” Sackett, 566 U.S. at 131 ( emphasis added). And given that, in Fiscal Year 2017, EPA issued just 600 compliance orders, not all of which were under the Clean Water Act, EPA, Enforcement Annual Results Numbers at a Glance for Fiscal Year 2017, at https://bit.ly/2tpwsEt (last visited Jan. 8, 2020), the additional administrative burdens of Petitioners’ proposed rule are likely to be minimal. 16 to address environmental emergencies would be unhampered, as the agency would retain its statutory authority to address urgent matters outside of the notice-and-hearing context. See 33 U.S.C. §§ 1321(e)(1)(B),

1364(a).

III.

CONCLUSION

As Professor Adler has observed with notable understatement,

private landowners and corporations accused of environmental wrongs are no less worthy of due process protections than alleged terrorists.”

Adler, supra, at 164. Thus, “[ i]f it is possible to reconcile liberty and security, it should also be possible to reconcile liberty with sustainability.” Id. at 164-65. See Osler, supra, at 91 ( observing that additional scrutiny on how EPA issues compliance orders to ensure “ a fair and equitable process” outweighs any countervailing administrative burden). The Clean Water Act’s reach is exceedingly challenging to ascertain. Hawkes Co., 136 S. Ct. at 1817 ( Kennedy, J., concurring);

Sackett, 566 U.S. at 132 (Alito, J., concurring). Guessing incorrectly as to its scope poses immense risks for landowners. Rapanos, 547 U.S. at 721

plurality op.). Indeed, mistakes made by a landowner, even inadvertent

17 ones, “ can be crushing.”4 Hawkes Co., 136 S. Ct. at 1816 (Kennedy, J., concurring). Giving compliance order recipients notice and an opportunity to be heard before an order issues will therefore reduce the burdens of the current regime. See id. at 1817 (“The Act . . . continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the

Nation” as well as increase its accuracy.). It also will reduce the incidence of erroneously issued orders. Further, in light of EPA’s existing notice- and-hearing procedure, and the agency’ s statutory power to issue emergency orders outside of that procedure, the gains to be had by extending notice-and-hearing rights to prospective compliance order recipients can be attained without substantial additional cost or risk of unaddressed environmental harm.

4 EPA is not immune from such mistakes. See EPA, Office of Inspector Gen., Gold King Mine Release: Inspector General Response to Congressional Requests (June 12, 2017). 18 Petitioners therefore urge the agency's swift adoption of the proposed notice- and- hearing rule.

DATED: January J__, 2020.

Respectfully submitted,

DAMIEN M. SCHIFF ANTHONY L. FRANCOIS

By~ F

Attorneys for Petitioners Pacific Legal Foundation and Michael and Chantell Sackett

19 91 7199 9991 7038 6595 1578

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PS Form 3811, August 2001 Domestic Return Receipt 2ACPRl-03-P-4081

SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY

Complete items 1, 2, and 3. Also complete A. Signature item 4 if Restricted Delivery is desired. Print your name and address on the reverse so that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery address different from item 1? 1. Article Addressed to: if YES, enter delivery address below: e¥'tt

o.fftc~ 0 ~ ft-olYnl\l'\\rtYot,uv, Yid re.rv wlt1e.e 1er 3. Service Type YY\ '01\ l ( I\'.) ot e, \ \ 14- 0 \ D Certified Mail D Express Mail 12.A'.) o f e, 'YI n J"f I V(iH' l\ 0t iW e, N w D Registered D Return Receipt for Merchandise D Insured Mail OC.0 .D. 0 w~.th t 1"11 ton, D' c_,, 1"°Y ' 4. Restricted Delivery? (Extra Fee) D Yes

2. Article Number Transfer from service label)

PS Form 3811, August 2001 Domestic Return Receipt 2ACPRl·03-P-408'1

SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY

Complete items 1 , 2, and 3. Also complete A. Signature item 4 if Restricted Delivery is desired. D Agent X Print your name and address on the reverse D Addressee

so that we can return the card to you. B. Received by ( Printed Name) C. Date of Delivery Attach this card to the back of the mailpiece, or on the front if space permits. D. lsdeliveryaddressdifferentfromitem1? D Yes 1. Article Addressed to: if YES, enter delivery address below: D No

tn V Y"\ OV\ mtwta l t l T 1i{.-i1 lJ l).{,,ttUi o~ ( Aenerol\ lA)Vn.i-t\ J

f\-'\o,tt\1tw L.to f6 \ o1 3. Service Type rY\ti1, ~ ae,. 23 to~ · D Certified Mall D Express Mail D Registered D Return Receipt for Merchandise feV1t1.rYIVtJ1l'l1oi ~ vi,,Nw 1i. 00 D Insured Mail 0 C.O.D. f~\Y11- t0 h, l)G 0 IOI 1.A)~i 4. Restricted Delivery? ( Extra Fee) D Yes

2. Article Number Transfer from service label)

PS Form 3811, August 2001 \ J' fl .~inestic Return Receipt 2ACPRl- 03- P- 4081

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