Any CERCLA Implications for CWA Pre-Enforcement Review under Sackett?

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Stoel Rives attorney Thomas Braun reviews the U.S. Supreme Court Sackett v. EPA case and its potential implications for the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) in an article published by the ABA Section of Environment, Energy and Resources. Decided by the Supreme Court on March 21, 2012, Sackett held that plaintiffs could challenge an Environmental Protection Agency (EPA) administrative order under the Clean Water Act prior to an EPA enforcement or reimbursement action. Is it possible that CERCLA's compliance order provision could be subject to a similar pre-enforcement challenge?

In the article, Braun lays out the two-part test established by Sackett. He concludes that since CERCLA includes an explicit bar on immediate pre-enforcement judicial review, a CERCLA compliance order would not be subject to pre-enforcement review under the Sackett test.

Read the full article (PDF)

"Not So Fast: the U.S. Supreme Court Allows Pre-enforcement Review under the Clean Water Act. Could CERCLA be next?" was published by Superfund and Natural Resources Damages Litigation Committee Newsletter, ABA Section of Environment, Energy and Resources, June 2013.

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Thomas J. Braun
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