After the Supreme Court held in Sackett v. EPA that EPA must provide hearings to those to whom it issues unilateral administrative orders, the regulated community immediately began to wonder how broadly the ruling would sweep. It is clear that EPA’s order authority under similar statutory provisions – such as those in the Clean Air Act – is also subject to Sackett. However, what about seemingly less final actions, such as issuance of notices of violation?

Last week, the 5th Circuit Court of Appeals held, in Luminant v. EPA, that Sackett does not apply to the issuance of NOVs. All of the other circuit courts to address the question had held that NOVs are not appealable – but all of them were pre-Sackett. Luminant argued that Sackett changed the analysis, but the court was not persuaded.

A notice of violation does not have the finality of the order in Sackett. Issuing a notice of violation does not create any legal obligation, alter any rights, or result in any legal consequences and does not mark the end of the EPA’s decisionmaking process.

I think that the Court got this one right. No one likes receiving NOVs, but that does not make them appealable. They do not by themselves have the same coercive effect that orders do – and that was so troubling to the Supreme Court in Sackett. NOVs can be negotiated and indeed are sometimes withdrawn or otherwise not pursued.

Sackett was a necessary check on EPA’s unfettered enforcement powers, but EPA still has tools to use.