|Chantelle and Mike Sackett|
|U.S. Supreme Court 2012|
The decision raises a host of questions for environmental lawyers and their clients, both in the government and the regulated community. For example:
- Will the Justice Department require a greater level of review of EPA orders, knowing it is more likely to have to defend them?
- Does the Sackett decision apply retroactively to allow parties already complying with an enforcement order to now challenge that order?
- Will parties currently in negotiation with EPA regarding compliance with an enforcement order now see benefit in appealing – or at least threatening to — in the hope of gaining a tactical advantage?
- What kind of burden will the decision place on EPA and state agency personnel, who will likely now have to devote more resources to preparing for litigation?
- Will filing an APA challenge succeed in tolling the accrual of penalties? If the challenge is unsuccessful, will penalties run from the date of the order or the date of final resolution of the challenge?
- To what extent will state-level enforcement actions under delegated programs be impacted?