- accueilcomp… · web viewthe word "intent" is used ... atmospheric or hydrologic...

13 Anderson v. American Smelting & Refining Co., 265 Fed. Rep. 928 (1919). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

104 Wn.2d 677

709 P.2d 782, 23 ERC 1851, 16 Envtl.L. Rep. 20,346

Certification from the United States District Court for the

Western District of Washington in Michael O.BRADLEY and Marie A. Bradley, husband

and wife, Plaintiffs,v.

AMERICAN SMELTING AND REFINING COMPANY, a New Jersey

corporation doing business in Washington, Defendant.

No. 51094-6.

Supreme Court of Washington,En Banc.

Nov. 14, 1985.

[709 P.2d 784]Page 678Cooper & Tobin, Bill Tobin, Vashon, Wash., for plaintiffs.

Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn, Ronald A. Roberts, Kathryn J. Nelson, Tacoma, Wash.,

for defendant.

CALLOW, Justice. This comes before us on a certification from the United States District Court for the Western District of Washington. Plaintiffs, landowners on Vashon Island, had sued for damages in trespass and nuisance from the deposit on their property of microscopic, airborne particles of heavy metals which came from the American Smelting and Refining Company (ASARCO) copper smelter at Ruston, Washington. The issues certified for answer are as follows:(1) Did the defendant have the requisite intent to commit intentional trespass as a matter of law?(2) Does an intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property give rise to a cause of action for trespassory invasion of the person's right to exclusive possession of property as well as a claim of nuisance?(3) Does the cause of action for trespassory invasion require proof of actual damages?(4) If a cause of action for intentional trespass is recognized in Washington, what are the appropriate limitations? What is the effect of the theory of continuing trespass and the discovery rule in this context? Are the affirmative defenses of prescription and preemption by other state laws recognized? The parties have stipulated to the facts as follows: Plaintiffs Michael O. Bradley and Marie A. Bradley, husband and wife, are owners and occupiers of real property on the southern end of Vashon Island in King County, Washington. The Bradleys purchased their property in 1978. Defendant ASARCO, a New Jersey corporation doing business in Washington, operates a primary copper smelter on real property it owns in Rushton, which is an incorporated municipality

surrounded by the city of Tacoma, Washington. On October 3, 1983, plaintiffs brought this action againstPage 680defendant alleging a cause of action for intentional trespass and for nuisance.

Plaintiffs' property is located some 4 miles north of defendant's smelter. Defendant's primary copper smelter (also referred to as the Tacoma smelter), has operated in its present location since 1890. It has operated as a copper smelter since 1902, and in 1905 it was purchased and operated by a corporate entity which is now ASARCO. As a part of the industrial process of smelting copper at the Tacoma smelter, various gases such as sulfur dioxide and particulate matter, including arsenic, cadmium and other metals, are emitted. Particulate matter is composed of distinct particles of matter other than water, which cannot be detected by the human senses. The emissions from the Tacoma smelter are subject to regulation under the Federal Clean Air Act, the Washington Clean Air Act (RCW 70.94) and the Puget Sound Air Pollution Control Agency (PSAPCA). Currently, the Tacoma smelter meets the National Ambient Air Quality Standards (NAAQS), both primary and secondary, for both sulfur dioxide and particulate matter. As a result of the variance granted by PSAPCA, the Tacoma smelter is also in compliance with PSAPCA Regulation I concerning particulate emissions. As a part of defendant's smelting process, the Tacoma smelter emits into the atmosphere gases and particulate matter. For the purposes of resolving the certified questions, the parties stipulate that some particulate emissions of both cadmium and arsenic from the Tacoma smelter have been and are continuing to be deposited on plaintiffs' land. Defendant ASARCO has

been aware since it took over operation of the Tacoma smelter in 1905 that the wind does, on occasion, cause smelter particulate emissions[709 P.2d 785] to blow over Vashon Island where plaintiffs' land is located. The parties are squabbling to some extent about other "factual" assertions which are immaterial to the resolution of the issues posed by the certification. It was apparently stipulated that the record contains no proof of actual damages.Page 681Other matters have been brought to our attention in the briefs of the parties which may be pertinent to the disposition of the case by the Federal District Court, but which are not relevant to our inquiry.

This case was initiated in King County Superior Court and later removed to the United States District Court. Upon the plaintiffs moving for summary judgment on the issue of liability for the claimed trespass, the stated issues were certified to this court. The issues present the conflict in an industrial society between the need of all for the production of goods and the desire of the landowner near the manufacturing plant producing those goods that his use and enjoyment of his land not be diminished by the unpleasant side effects of the manufacturing process. A reconciliation must be found between the interest of the many who are unaffected by the possible poisoning and the few who may be affected.1. Did the defendant have the requisite intent to commit intentional trespass as a matter of law? The parties stipulated that as a part of the smelting process, particulate matter including arsenic and cadmium was emitted, that some of the emissions had been deposited on the plaintiffs' land and that the defendant has been aware since 1905 that the wind, on occasion, caused these emissions to be blown over the plaintiffs' land. The defendant cannot and does not

deny that whenever the smelter was in operation the whim of the winds could bring these deleterious substances to the plaintiffs' premises. We are asked if the defendant, knowing what it had to know from the facts it admits, had the legal intent to commit trespass. The Restatement (Second) of Torts § 158 (1965) states: One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, orPage 682 (c) fails to remove from the land a thing which he is under a duty to remove. In the comment on Clause (a) of § 158 at 278 it is stated in part: i. Causing entry of a thing. The actor, without himself entering the land, may invade another's interest in its exclusive possession by throwing, propelling, or placing a thing, either on or beneath the surface of the land or in the air space above it. Thus, in the absence of the possessor's consent or other privilege to do so, it is an actionable trespass to throw rubbish on another's land ... In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter. Addressing the definition, scope and meaning of "intent", section 8A of the Restatement (Second) of Torts says:The word "intent" is used ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially

certain to result from it. and we find in comment b at 15:Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. [709 P.2d 786] The defendant has known for decades that sulfur dioxide and particulates of arsenic, cadmium and other metals were being emitted from the tall smokestack. It had to know that the solids propelled into the air by the warm gases would settle back to earth somewhere. It had to know that a purpose of the tall stack was to disperse the gas, smoke and minute solids over as large an area as possible and as far away as possible, but that while any resulting contamination would be diminished as to any one area or landowner, that nonetheless contamination, though slight, would follow. In W. Prosser, Torts § 8, at 31-32 (4th ed.831971) intent is defined as follows:

The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. The defendant may be liable although he has meant nothing more than a good-natured practical joke ...* * * Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does.... The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he

cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant's position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it. (Footnotes omitted.) This has been the reasoning of the decisions of this State. Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955) involved a 5-year-old boy who pulled a chair from under an arthritic woman as she was about to sit in it. The court held that to find liability for an intentional tort it had to be found that there was a volitional act undertaken with the knowledge and substantial certainty that reasonably to be expected consequences would follow. It is patent that the defendant acted on its own volition and had to appreciate with substantial certainty that the law of gravity would visit the effluence upon someone, somewhere. The defendant cites Washington Natural Gas Co. v. Tyee Constr. Co., 26 Wash.App. 235, 611 P.2d 1378, review denied 94 Wash.2d 1011 (1980) as standing for the proposition that the intent necessary to find a trespass is an intent to cause damage. We find nothing in that statement inconsistentPage 684with our holding that intent to trespass may also include an act that the actor undertakes realizing that there is a high probability of injury to others and yet the actor behaves with disregard of those likely consequences.

We find that the defendant had the requisite intent to commit intentional trespass as a matter of law.2. Does an intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property give rise to a cause of action for trespassory invasion of the person's right to exclusive

possession of property as well as a claim of nuisance? The courts have been groping for a reconciliation of the doctrines of trespass and nuisance over a long period of time and, to a great extent, have concluded that little of substance remains to any distinction between the two when air pollution is involved. Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, 285 P. 446 (1930) held that the discharge of smoke, ashes and cinders from a sawmill upon a neighboring farm was "in the nature of a continuing nuisance" and that the 2-year statute of limitations applied. The opinion also stated that an action for damages could be maintained if the injury to the premises was substantial rather than slight. See [709 P.2d 787] also Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266 (1902). We agree with the observations on the inconsequential nature of the efforts to reconcile the trappings of the concepts of trespass and nuisance in the face of industrial airborne pollution when Professor Rodgers states: Trespass is a theory closely related to nuisance and occasionally invoked in environmental cases. The distinction between the two originally was the difference between the old action of trespass and the action on the case: if there was a direct and immediate physical invasion of plaintiff's property, as by casting stones or water on it, it was a trespass; if the invasion was indirect, as by the seepage of water, it was a nuisance. Today, with the abandonment of the old procedural forms, the line between trespass and nuisance has become "wavering and uncertain." The basic distinctionPage 685is that trespass can be defined as any intentional invasion of the plaintiff's interest in the exclusive possession of property, whereas a nuisance requires a substantial and unreasonable interference with his use and enjoyment of it. That is to say, in

trespass cases defendant's conduct typically results in an encroachment by "something" upon plaintiff's exclusive rights of possession.

The first and most important proposition about trespass and nuisance principles is that they are largely coextensive. Both concepts are often discussed in the same cases without differentiation between the elements of recovery.... It is also true that in the environmental arena both nuisance and trespass cases typically involve intentional conduct by the defendant who knows that his activities are substantially certain to result in an invasion of plaintiff's interests. The principal difference in theories is that the tort of trespass is complete upon a tangible invasion of plaintiff's property, however slight, whereas a nuisance requires proof that the interference with use and enjoyment is "substantial and unreasonable." This burden of proof advantage in a trespass case is accompanied by a slight remedial advantage as well. Upon proof of a technical trespass plaintiff always is entitled to nominal damages. It is possible also that a plaintiff could get injunctive relief against a technical trespass--for example, the deposit of particles of air pollutant on his property causing no known adverse effects. The protection of the integrity of his possessory interests might justify the injunction even without proof of the substantial injury necessary to establish a nuisance. Of course absent proof of injury, or at least a reasonable suspicion of it, courts are unlikely to invoke their equitable powers to require expensive control efforts. While the strict liability origins of trespass encourage courts to eschew a balancing test in name, there is authority for denying injunctive relief if defendant has exhausted his technological opportunities for control. If adopted generally, this

principle would result substantially in a coalescence of nuisance and trespass law. Acknowledging technological or economic justifications for trespassory invasions does away with the historically harsh treatment of conduct interfering with another's possessory interests.Page 686 Just as there may be proof advantages in a trespass theory, there may be disadvantages also. Potential problems lurk in the ancient requirements that a trespassory invasion be "direct or immediate" and that an "object" or "something tangible" be deposited upon plaintiff's land. Some courts hold that if an intervening force, such as wind or water, carries the pollutants onto the plaintiff's land, then the entry is not "direct." Others define "object" as requiring something larger or more substantial than smoke, dust, gas, or fumes. Both of these concepts are nonsensical barriers, although the courts are slow to admit it. The requirement that the invasion be "direct" is a holdover from the forms of action, and is repudiated by [709 P.2d 788] contemporary science of causation. Atmospheric or hydrologic systems assure that pollutants deposited in one place will end up somewhere else, with no less assurance of causation than the blaster who watches the debris rise from his property and settle on his neighbor's land. Trespassory consequences today may be no less "direct" even if the mechanism of delivery is viewed as more complex. The insistence that a trespass involve an invasion by a "thing" or "object" was repudiated in the well known (but not particularly influential) case of Martin v. Reynolds Metals Co., [221 Or. 86, 342 P.2d 790 (1959) ], which held that gaseous and particulate fluorides from an aluminum smelter constituted a trespass for purposes of the statute of limitations:

[L]iability on the theory of trespass has been recognized where the harm was produced by the vibration of the soil or by the concussion of the air which, of course, is nothing more than the movement of molecules one against the other.* * *The view recognizing a trespassory invasion where there is no 'thing' which can be seen with the naked eye undoubtedly runs counter to the definition of trespass expressed in some quarters. [Citing the Restatement (First), Torts and Prosser]. It is quite possible that in an earlier day when science had not yet peered into the molecular and atomic world of small particles, the courts could not fit an invasion through unseen physical instrumentalities into the requirement that a trespass can result only from a direct invasion. But inPage 687this atomic age even the uneducated know the great and awful force contained in the atom and what it can do to a man's property if it is released. In fact, the now famous equation E=MC 2 has taught us that mass and energy are equivalents and that our concept of 'things' must be reframed. If these observations on science in relation to the law of trespass should appear theoretical and unreal in the abstract, they become very practical and real to the possessor of land when the unseen force cracks the foundation of his house. The force is just as real if it is chemical in nature and must be awakened by the intervention of another agency before it does harm.

Martin is quite right in hastening the demise of the "direct" and "tangible" limitations on the law of trespass. But any disappearance of these limits on the doctrine is likely to be accompanied by modifications of its strict liability advantages also. While parts per billion of fluorides or rays of light or magnetic invasions may work a trespass as effectively as flying rocks, it would seem that relief (particularly injunctive relief) should not follow without further inquiry into the limits of

technology and prevailing land use patterns. With regard to remedies, the trespass and nuisance cases are quite alike. Martin points up an important difference because the statutes of limitation for nuisances are generally shorter than those for trespasses. The measure of damages for a permanent trespass, like a nuisance, is depreciation of market value. (Footnotes omitted.) W. Rodgers, Environmental Law § 2.13 at 154-57 (1977) Martin v. Reynolds Metals Co., 221 Or. 86, 90-91, 101, 342 P.2d 790 (1959) was an action in trespass brought against the defendant corporation for causing gases and fluoride particulates to settle on the plaintiffs' land making it unfit for livestock. The quote set forth from Rodgers' Environmental Law included a portion of the decision from that case. In addition, the court stated: Trespass and private nuisance are separate fields of tort liability relating to actionable interference with the possession of land. They may be distinguished by comparing the interest invaded; and actionable invasion of aPage 688possessor's interest in the exclusive possession of land is a trespass; an actionable invasion of a possessor's interest in the use and enjoyment of his land is a nuisance. 4 Restatement,[709 P.2d 789] Torts 224 Intro. Note Chapter 40.

The same conduct on the part of a defendant may and often does result in the actionable invasion of both of these interests, in which case the choice between the two remedies is, in most cases, a matter of little consequence. Where the action is brought on the theory of nuisance alone the court ordinarily is not called upon to determine whether the conduct would also result in a trespassory invasion. In such cases the courts' treatment of the invasion solely in terms of the

law of nuisance does not mean that the same conduct could not also be regarded as a trespass. Some of the cases relied upon by the defendant are of this type; cases in which the court holds that the interference with the plaintiff's possession through soot, dirt, smoke, cinders, ashes and similar substances constitute a nuisance, but where the court does not discuss the applicability of the law of trespass to the same set of facts. However, there are cases which have held that the defendant's interference with plaintiff's possession resulting from the settling upon his land of effluents emanating from defendant's operations is exclusively nontrespassory. Although in such cases the separate particles which collectively cause the invasion are minute, the deposit of each of the particles constitutes a physical intrusion and, but for the size of the particle, would clearly give rise to an action of trespass. The defendant asks us to take account of the difference in size of the physical agency through which the intrusion occurs and relegate entirely to the field of nuisance law certain invasions which do not meet the dimensional test, whatever that is. In pressing this argument upon us the defendant must admit that there are cases which have held that a trespass results from the movement or deposit of rather small objects over or upon the surface of the possessor's land.* * * We hold that the defendant's conduct in causing chemical substances to be deposited upon the plaintiffs' land fulfilled all of the requirements under the law of trespass.Page 689 (Citations omitted.) We hold that theories of trespass and nuisance are not inconsistent, that the theories may apply concurrently, and that the injured party may proceed under both theories when the

elements of both actions are present. The Restatement (Second) of Torts § 821D, comment d, at 102 (1979) states:For an intentional trespass, there is liability without harm; for a private nuisance, there is no liability without significant harm. In trespass an intentional invasion of the plaintiff's possession is of itself a tort, and liability follows unless the defendant can show a privilege. In private nuisance an intentional interference with the plaintiff's use or enjoyment is not of itself a tort, and unreasonableness of the interference is necessary for liability. Comment e at 102 states: There may, however, be some overlapping of the causes of action for trespass and private nuisance. An invasion of the possession of land normally involves some degree of interference with its use and enjoyment and this is true particularly when some harm is inflicted upon the land itself. The cause of action for trespass has traditionally included liability for incidental harms of this nature. If the interference with the use and enjoyment of the land is a significant one, sufficient in itself to amount to a private nuisance, the fact that it arises out of or is accompanied by a trespass will not prevent recovery for the nuisance, and the action may be maintained upon either basis as the plaintiff elects or both.... The two actions, trespass and private nuisance, are thus not entirely exclusive or inconsistent, and in a proper case in which the elements of both actions are fully present, the plaintiff may have his choice of one or the other, or may proceed upon both. [709 P.2d 790] We also should recognize the fallacy of clinging to outmoded doctrines. The distinction between direct and indirect invasions to land was abandoned in Zimmer v. Stephenson, 66 Wash.2d 477, 403 P.2d 343 (1965). There the defendant had

been plowing a fireguard in his field when a spark escaped from the exhaust stack of his tractor and set on fire the plaintiff's adjoining wheat field. An action wasPage 690commenced more than 2 years but less than 3 years from the date of the fire. The trial court held that an action would not lie in trespass due to the indirect nature of the invasion, and dismissed the case.

The opinion states in part at pages 482-83, 403 P.2d 343: The common law, along with its forms of action, has long been recognized as capable of growth and expansion in keeping with the necessities of modern society. The writings of Chitty and Coke have long been absent from the library shelves of most practicing attorneys, and, if for no other reason, the fine, though oftentimes indiscernible distinctions, between the ancient writs of trespass and trespass on the case should not be unduly preserved in aid of a statute of limitations. The proper rule should now be as enunciated in Restatement, Torts § 165, p. 390: One who recklessly or negligently, or as a result of an extra hazardous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor thereof or to a thing or a third person in whose security the possessor has a legally protected interest. See also 35 Wash.L.Rev. 474 (1960); 46 Wash.L.Rev. 47, 114-16 (1970). Having held that there was an intentional trespass, we adopt, in part, the rationale of Borland v. Sanders Lead Co., 369 So.2d 523, 529 (Ala.1979), which stated in part:

Although we view this decision as an application, and not an extension, of our present law of trespass, we feel that a brief restatement and summary of the principles involved in this area would be appropriate. Whether an invasion of a property interest is a trespass or a nuisance does not depend upon whether the intruding agent is "tangible" or "intangible." Instead, an analysis must be made to determine the interest interfered with. If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies. If the intrusion is to the interest in use and enjoyment of property, the law of nuisance applies. As previously observed, however, thePage 691remedies of trespass and nuisance are not necessarily mutually exclusive.

* * * Under the modern theory of trespass, the law presently allows an action to be maintained in trespass for invasions that, at one time, were considered indirect and, hence, only a nuisance. In order to recover in trespass for this type of invasion [i.e., the asphalt piled in such a way as to run onto plaintiff's property, or the pollution emitting from a defendant's smoke stack, such as in the present case], a plaintiff must show 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff's possessory interest; and 4) substantial damages to the res. (Footnote omitted.) We accept and approve the elements of trespass by airborne pollutants as set forth by the Borland case. See also Roberts v. Permanente Corp., 188 Cal.App.2d 526, 10 Cal.Rptr. 519 (1961); Sheppard Envelope Co. v.

Arcade Malleable Iron Co., 335 Mass. 180, 138 N.E.2d 777 (1956). We note, but decline to follow Arvidson v. Reynolds Metals Co., 125 F.Supp. 481 (W.D.Wash.1954); and Ryan v. Emmetsburg, 232 Iowa 600, 4 N.W.2d 435 (1942).[709 P.2d 791] 3. Does the cause of action for trespassory invasion require proof of actual damages? When airborne particles are transitory or quickly dissipate, they do not interfere with a property owner's possessory rights and, therefore, are properly denominated as nuisances. Born v. Exxon Corp., 388 So.2d 933 (Ala.1980); Ryan v. Emmetsburg, supra; and Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5 A.L.R.2d 690 (1948). When, however, the particles or substance accumulates on the land and does not pass away, then a trespass has occurred. Borland v. Sanders Lead Co., supra; Martin v. Reynolds Metals Co., supra. While at common law any trespass entitled a landowner to recover nominal or punitive damages for the invasion of his property, such a rule isPage 692not appropriate under the circumstances before us. No useful purpose would be served by sanctioning actions in trespass by every landowner within a hundred miles of a manufacturing plant. Manufacturers would be harassed and the litigious few would cause the escalation of costs to the detriment of the many. The elements that we have adopted for an action in trespass from Borland require that a plaintiff has suffered actual and substantial damages. Since this is an element of the action, the plaintiff who cannot show that actual and substantial damages have been suffered should be subject to dismissal of his cause upon a motion for summary judgment.

4. If a cause of action for intentional trespass is recognized in Washington, what are the appropriate limitations? What is the effect of the theory of continuing trespass and the discovery rule in this context? Are the affirmative defenses of prescription

and preemption by other state laws recognized? We have recognized that the intrusion to land from this kind of an invasion, once thought to be a trifling interference with the actual use of the land, may be very devastating indeed. The former approach, whether arising from the infrequency with which interference occurred, the unsophisticated nature of earlier air pollutants or because of our lack of awareness of their potential for harm, we now abandon. It is appropriate, therefore, that having recognized this intrusion upon land as a trespass, the 3-year statute of limitations should apply. RCW 4.16.080(1). An action for trespass to land must be brought within 3 years of the invasion to the premises. Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 89 Wash.2d 72, 75, 569 P.2d 1141 (1977); Suter v. Wenatchee Water Power Co., 35 Wash. 1, 76 P. 298 (1904). We now hold that when the actions of a defendant have (1) invaded the plaintiff's interest in the exclusive possession of his property, (2) been committed intentionally, (3) been done with the knowledge and reasonable foreseeability that the act would disturb thePage 693plaintiffs' possession, and (4) caused actual and substantial damages; the 3-year statute of limitations applies. To the extent that they are inconsistent with this holding, Riblet v. Spokane-Portland Cement Co., 41 Wash.2d 249, 248 P.2d 380 (1952); Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, 285 P. 446 (1930); and Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266 (1902) are overruled.

Songstad v. Municipality of Metro Seattle, 2 Wash.App. 680, 472 P.2d 574 (1970), commenting upon Zimmer v. Stephenson, 66 Wash.2d 477, 403 P.2d 343 (1965) (which we have previously quoted) observed that intentional intrusions fall within the ambit of RCW 4.16.080(1). The action of the defendant amounts to a continuing trespass which is defined by the

Restatement (Second) of Torts § 158, comment m as "[a]n unprivileged remaining on land in another's possession". Assuming that a defendant has caused actual and substantial damage to a plaintiff's property, the trespass continues until the intruding substance is removed. If such is the case, and damages can be proved, as required, actions may be brought for uncompensated injury. In view of our holding that the tort falls within the theory of continuing trespass, we [709 P.2d 792] further find that the 3-year period of limitations must run from the date that the cause of action accrues. We reject the discovery rule as being inappropriate for a continuing trespass claim. The discovery rule begins the running of the statute of limitations when the plaintiff discovers or reasonably could have discovered, in the exercise of reasonable diligence, that he had a cause of action. U.S. Oil & Ref. Co. v. Department of Ecology, 96 Wash.2d 85, 91, 633 P.2d 1329 (1981). With circumstances, such as confront us here, and in the interests of certainty, it would be improper to expose manufacturers to claims running back for untold years when the injury many years back may have been inconsequential and the very existence of a cause of action vague and speculative. Further, in ruling that actual and substantial damages are required, we find it proper to also require that damages claimed not extend past the 3-Page 694year period of limitations.

Defendant argues that we should allow, as a defense, a claim of prescriptive easement and preemption by the Washington Clean Air Act. We note that RCW 4.16.020(1) creates a right of adverse possession 10 years after initial possession. In order to obtain a prescriptive easement the defendant would have to show (1) use adverse to the title owner, (2)

open, notorious, continuous and uninterrupted use for 10 years, and (3) the owner's knowledge of the adverse use when he was able to enforce his rights. Dunbar v. Heinrich, 95 Wash.2d 20, 22, 622 P.2d 812 (1980). There is little likelihood that the doctrine of prescriptive easement will have application to the situation before us. To gain a prescriptive easement, the use must be open, notorious, continuous and uninterrupted for a period of 10 years. We have observed that invasion by particulate matter is not open and notorious and therefore it would indeed be difficult to establish on the part of a defendant that the prescriptive easement period had run. However that may be, there may be instances when a defendant can establish as a defense all of the elements of prescriptive easement, thereby precluding any recovery by a landowner. As a practical matter, this would indeed be a blatant and flagrant pollution of adjoining land to start the running of the prescriptive period and to forever bar the landowner from recovering for the continuing activity of the polluter. We recognize the possibility and recognize also that whether or not the invasion of the plaintiffs' land was open and notorious is a question of fact to be established in a forum other than this court. Defendant also proposes that the Washington Clean Air Act permits only suits in nuisance. RCW 70.94.230 provides in part:[N]othing herein shall be construed to supersede any local county, or city ordinance or resolution, or any provision of the statutory or common law pertaining to nuisance ... RCW 70.94.901 provides in part:Page 695 This 1967 amendatory act shall not be construed to create in any way nor to enlarge, diminish or otherwise affect in any way any private rights in any civil action for damages.

This is a civil action for damages, and the Washington Clean Air Act specifically does not preclude such suits. In conclusion, we answer the certified questions as follows:1. The defendant had the requisite intent to commit intentional trespass.2. An intentional deposit of microscopic particulates, undetectable by the human senses, gives rise to a cause of action for trespass as well as a claim of nuisance.3. A cause of action under such circumstances requires proof of actual and substantial damages.4. The appropriate limitations period for such a trespass is 3 years, but if the trespass continues, suit for damages may be brought for any damages not recovered previously and occurring within the 3-year period preceding suit. The period of limitations runs from the date the cause of action accrues. The [709 P.2d 793] defense of easement by prescription is available if the defendant can prove each of the elements of the defense. The cause of action for trespass is not preempted by the Washington Clean Air Act. The United States District Court for the Western District of Washington shall be notified for such further action as it deems appropriate. DOLLIVER, C.J., and UTTER, DORE, PEARSON, BRACHTENBACH, ANDERSEN, GOODLOE, and DURHAM, JJ., concur.15 Gulf Oil v. Gilbert, 330 U.S. 501 (1947). . . . . . . . . . . . . . . . . . . . . . .

17 Just v. Marinette County, 6 Wis.2d 7 (Supreme Court of Wisconsin)

18 National Audubon Society v. Department of Water and Power of the City of Los Angeles,658 P.2d 709 (Sup. Ct. Calif. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19 Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (1965) (US).. . . . . . . . . . . . . . . .

20 SCRAP v. U.S., 412 U.S. 669 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21 Tanner v. Armco Steel Corp., 340 F.Supp. 532 (SD Tex. 1972) . . . . .

22. United States v. Billabong II Ans., (D.S.C. July 1, 2003) . . . . . . . . . . .

23. United States v. JohnT.Frederick(D.Mich.July7,2003)

24. UnitedStates v.RiversideBayviewHomes,Inc.,474US121(USSC)

25. Wiwa v Royal Dutch Petroleum,226 F.3d 88 (2d Cir. USA, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26. 11-338 Decker v. Northwest Environmental Defense Center (03/20/2013)

27. 10-388 Huber v. New Jersey Dept. of Environmental Protection (03/21/11)

28. 04-1527 -- S. D. Warren Co. v. Maine Bd. of Environmental Protection (5/15/06)

28. 08-1151 Stop The Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection (06/17/2010)

29. 02-658. Alaska Dept. of Environmental Conservation v. EPA (10/8/03)

30. (Slip Opinion) OCTOBER TERM, 2014 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MICHIGAN ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT*

No. 14–46. Argued March 25, 2015—Decided June 29, 2015

The Clean Air Act directs the Environmental Protection Agency to regulate emissions of hazardous air pollutants from certain stationary sources (such as refineries and factories). 42 U. S. C. §7412. The Agency may regulate power plants under this program only if it con- cludes that “regulation is appropriate and necessary” after studying hazards to public health posed by power-plant emissions. §7412(n)(1)(A). Here, EPA found power-plant regulation “appropriate” because the plants’ emissions pose risks to public health and the environment and because controls capable of reducing these emissions were available. It found regulation “necessary” because the im- position of other Clean Air Act requirements did not eliminate those risks. The Agency refused to consider cost when making its decision. It estimated, however, that the cost of its regulations to power plants would be $9.6 billion a year, but the quantifiable benefits from the resulting reduction in hazardous-air-pollutant emissions would be $4 to $6 million a year. Petitioners (including 23 States) sought review of EPA’s rule in the D. C. Circuit, which upheld the Agency’s refusal to consider costs in its decision to regulate.

Held: EPA interpreted §7412(n)(1)(A) unreasonably when it deemed cost irrelevant to the decision to regulate power plants. Pp. 5–15.

(a) Agency action is unlawful if it does not rest “ ‘on a consideration

——————*Together with No. 14–47, Utility Air Regulatory Group v. Environ-

mental Protection Agency et al., and No. 14–49, National Mining Assn. v. Environmental Protection Agency et al., also on certiorari to the same court.

of the relevant factors.’ ” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. Even under the deferential standard of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, which directs courts to accept an agency’s reasonable resolution of an ambiguity in a statute that the agency administers, id., at 842–843, EPA strayed well be- yond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants. Pp. 5–6.

(b) “Appropriate and necessary” is a capacious phrase. Read natu- rally against the backdrop of established administrative law, this phrase plainly encompasses cost. It is not rational, never mind “appropriate,” to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. Statutory context supports this reading. Section 7412(n)(1) required the EPA to conduct three studies, including one that reflects concern about cost, see §7412(n)(1)(B); and the Agency agrees that the term “appropriate and necessary” must be interpreted in light of all three studies. Pp. 6–9.

(c) EPA’s counterarguments are unpersuasive. That other Clean Air Act provisions expressly mention cost only shows that §7412(n)(1)(A)’s broad reference to appropriateness encompasses multiple relevant factors, one of which is cost. Similarly, the modest principle of Whitman v. American Trucking Assns., Inc., 531 U. S. 457—when the Clean Air Act expressly directs EPA to

regulate on the basis of a discrete factor that does not include cost, the Act should not be read as implicitly allowing consideration of cost anyway—has no bearing on this case. Furthermore, the possibility of considering cost at a later stage, when deciding how much to regulate power plants, does not establish its irrelevance at this stage. And although the Clean Air Act makes cost irrelevant to the initial decision to regulate sources other than power plants, the whole point of having a separate provision for power plants was to treat power plants differ- ently. Pp. 9–12.

(d) EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost. Pp. 12–15.

748 F. 3d 1222, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

31. SUPREME COURT OF THE UNITED STATES

Syllabus

SACKETT ET VIR v. ENVIRONMENTAL PROTECTION AGENCY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10–1062. Argued January 9, 2012—Decided March 21, 2012

The Clean Water Act prohibits “the discharge of any pollutant by any person,” 33 U. S. C. §1311, without a permit, into “navigable waters,” §1344. Upon determining that a violation has occurred, the Envi- ronmental Protection Agency (EPA) may either issue a compliance order or initiate a civil enforcement action. §1319(a)(3). The resulting civil penalty may not “exceed [$37,500] per day for each violation.” §1319(d). The Government contends that the amount doubles to $75,000 when the EPA prevails against a person who has been issued a compliance order but has failed to comply.

The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. The Sacketts sought declarative and injunctive relief in the Federal Dis- trict Court, contending that the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it deprived them of due process in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The Ninth Circuit affirmed, concluding that the Clean Water Act precluded pre- enforcement judicial review of compliance orders and that such preclusion did not violate due process.

Held: The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order. Pp. 4–10.

(a) The APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U. S. C. §704. The compliance order here has all the hallmarks of APA finality. Through it, the EPA “determined” “rights or obligations,” Bennett v.

2

SACKETT v. EPA Syllabus

Spear, 520 U. S. 154, 178, requiring the Sacketts to restore their property according to an agency-approved plan and to give the EPA access. Also, “legal consequences . . . flow” from the order, ibid., which, according to the Government’s litigating position, exposes the Sacketts to double penalties in future enforcement proceedings. The order also severely limits their ability to obtain a permit for their fill from the Army Corps of Engineers, see 33 U. S. C. §1344; 33 CFR §326.3(e)(1)(iv). Further, the order’s issuance marks the “consummation” of the agency’s decisionmaking process, Bennett, supra, at 178, for the EPA’s findings in the compliance order were not subject to further agency review. The Sacketts also had “no other adequate remedy in a court,” 5 U. S. C. §704. A civil action brought by the EPA under 33 U. S. C. §1319 ordinarily provides judicial review in such cases, but the Sacketts cannot initiate that process. And each day they wait, they accrue additional potential liability. Applying to the Corps of Engineers for a permit and then filing suit under the APA if that permit is denied also does not provide an adequate remedy for the EPA’s action. Pp. 4–6.

(b) The Clean Water Act is not a statute that “preclude[s] judicial review” under the APA, 5 U. S. C. §701(a)(1). The APA creates a “presumption favoring judicial review of administrative action.” Block v. Community Nutrition Institute, 467 U. S. 340, 349. While this presumption “may be overcome by inferences of intent drawn from the statutory scheme as a whole,” ibid., the Government’s ar- guments do not support an inference that the Clean Water Act’s statutory scheme precludes APA review. Pp. 7–10.

622 F. 3d 1139, reversed and remanded.

SCALIA, J., delivered the opinion for a unanimous Court. GINSBURG, J., and ALITO, J., filed concurring opinions.

Cite as: 566 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES _________________

No. 10–1062 _________________

CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI- RONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[March 21, 2012]

JUSTICE SCALIA delivered the opinion of the Court.

We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U. S. C. §500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an admin istrative compliance order under §309 of the Clean Water Act, 33 U. S. C. §1319. The order

asserts that the Sack etts’ property is subject to the Act, and that they have violated its provisions by placing fill material on the prop erty; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan.

I

The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” §1311, without a permit, into the “navigable waters,” §1344—which the Act defines as “the waters of the United States,” §1362(7). If the EPA determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. §1319(a)(3). When the EPA prevails in a civil action, the Act provides for “a civil penalty not to exceed [$37,500] per

day for each violation.”

1

§1319(d). And according to the Government, when the

EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000—up to $37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order.

The particulars of this case flow from a dispute about the scope of “the navigable waters” subject to this en forcement regime. Today we consider only whether the dispute may be brought to court by challenging the com pliance order—we do not resolve the dispute on the merits. The reader will be curious, however, to know what all the fuss is about. In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), we upheld a regulation that construed “the navigable waters” to include “freshwa ter wetlands,” id., at 124, themselves not actually naviga ble, that were adjacent to navigable-in-fact waters. Later, in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001), we held that an abandoned sand and gravel pit, which “seasonally ponded” but which was not adjacent to open water, id., at 164, was not part of the navigable waters. Then most recently, in Rapanos v. United States, 547 U. S. 715 (2006), we consid ered whether a wetland not adjacent to navigable-in-fact waters fell within the scope of the Act. Our answer was no, but no one rationale commanded a majority of the Court. In his separate opinion, THE CHIEF JUSTICE ex pressed the concern that interested parties would lack

——————

1

The original statute set a penalty cap of $25,000 per violation per day. The Federal Civil Penalties

Inflation Adjustment Act of 1990, 104 Stat. 890, note following 28 U. S. C. §2461, as amended by the Debt Collection Improvement Act of 1996, §3720E, 110 Stat. 1321–373, note following 28 U. S. C. §2461, p. 1315 (Amendment), authorizes the EPA to adjust that maximum penalty for inflation. On the basis of that authority, the agency has raised the cap to $37,500. See 74 Fed. Reg. 626, 627 (2009).

Cite as: 566 U. S. ____ (2012) 3

Opinion of the Court

guidance “on precisely how to read Congress’ limits on the reach of the Clean Water Act” and would be left “to feel their way on a case-by-case basis.” Id., at 758 (concurring opinion).

The Sacketts are interested parties feeling their way. They own a

2

⁄3-acre

residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but is separated from the lake by several lots containing perma nent structures. In preparation for constructing a house, the Sacketts filled in part of their lot with dirt and rock. Some months later, they received from the EPA a compli ance order. The order contained a number of “Findings and Conclusions,” including the following:

“1.4 [The Sacketts’ property] contains wetlands with in the meaning of 33 C. F. R. §328.4(8)(b); the wet lands meet the criteria for jurisdictional wetlands in the 1987 ‘Federal Manual for Identifying and Deline ating Jurisdictional Wetlands.’

“1.5 The Site’s wetlands are adjacent to Priest Lake within the meaning of 33 C. F. R. §328.4(8)(c). Priest Lake is a ‘navigable water’ within the meaning of sec tion 502(7) of the Act, 33 U. S. C. §1362(7), and ‘wa ters of the United States’ within the meaning of 40 C. F. R. §232.2.

“1.6 In April and May, 2007, at times more fully known to [the Sacketts, they] and/or persons acting on their behalf discharged fill material into wetlands at the Site. [They] filled approximately one half acre. .....

“1.9 By causing such fill material to enter waters of the United States, [the Sacketts] have engaged, and are continuing to engage, in the ‘discharge of pollu tants’ from a point source within the meaning of sec tions 301 and 502(12) of the Act, 33 U. S. C. §§1311

and 1362(12). .....

4

SACKETT v. EPA Opinion of the Court

“1.11 [The Sacketts’] discharge of pollutants into wa ters of the United States at the Site without [a] per mit constitutes a violation of section 301 of the Act, 33 U. S. C. §1311.” App. 19–20.

On the basis of these findings and conclusions, the order directs the Sacketts, among other things, “immediately [to] undertake activities to restore the Site in accordance with [an EPA-created] Restoration Work Plan” and to “provide and/or obtain access to the Site . . . [and] access to all records and documentation related to the conditions at the Site . . . to EPA employees and/or their designated representatives.” Id., at 21–22, ¶¶2.1, 2.7.

The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but that request was denied. They then brought this action in the United States District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA’s issuance of the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject matter jurisdiction, and the United States Court of Ap peals for the Ninth Circuit affirmed, 622 F.3d 1139 (2010). It concluded that the Act “preclude[s] pre enforcement judicial review of compliance orders,” id., at 1144, and that such preclusion does not violate the Fifth Amendment’s due process guarantee, id., at 1147. We granted certiorari. 564 U. S. ___ (2011).

II

The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U. S. C. §704. We consider first whether the compliance order is final agency action. There is no doubt it is agency action, which the APA defines as including even a “failure to act.” §§551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA “‘determined’” “‘rights or ob ligations.’ ” Bennett v. Spear, 520 U. S. 154, 178 (1997) (quoting Port of Boston Marine Terminal Assn. v. Re- deriaktiebolaget Transatlantic, 400 U. S. 62, 71 (1970)). By reason of the order, the Sacketts have the legal obliga tion to “restore” their property according to an agency approved Restoration Work Plan, and must give the EPA access to their property and to “records and documentation related to the conditions at the Site.” App. 22, ¶2.7.

Also, “‘legal consequences . . . flow’” from issuance of the order. Bennett, supra, at 178 (quoting Marine Terminal, supra, at 71). For one, according to the Government’s current litigating position, the order exposes the Sacketts to dou ble penalties in a future enforcement proceeding.

2

It also severely limits the

Sacketts’ ability to obtain a permitfo for their fill from the Army Corps of Engineers, see 33 U. S. C. §1344. The Corps’ regulations provide that, once the EPA has issued a compliance order with respect to certain property, the Corps will

not process a permit application for that property unless doing so “is clearly appropriate.” 33 CFR §326.3(e)(1)(iv) (2011).

3

The issuance of the compliance order also marks the “‘consummation’” of the agency’s decisionmaking process. ——————

2

We do not decide today that the Government’s position is correct, but assume the consequences

of the order to be what the Government asserts.

3

The regulation provides this consequence for “enforcement litigation that has been initiated by

other Federal . . . regulatory agencies.” 33 CFR §326.3(e)(1)(iv) (2011). The Government acknowledges, however, that EPA’s issuance of a compliance order is considered by the Corps to fall within the provision. Brief for Respondents 31. Here again, we take the Government at its word without affirming that it represents a proper interpretation of the regulation.

6 SACKETT v. EPA Opinion of the Court

Bennett, supra, at 178 (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 113 (1948)). As the Sacketts learned when they unsuccessfully sought a hearing, the “Findings and Conclusions” that the compliance order contained were not subject to further agency review. The Government resists this conclusion, pointing to a portion of the order that invited the Sacketts to “engage in informal discussion of the terms and re quirements” of the order with the EPA and to inform the agency of “any allegations [t]herein which [they] believe[d] to be inaccurate.” App. 22–23, ¶2.11. But that confers no entitlement to further agency review. The mere possibil ity that an agency might reconsider in light of “informal discussion” and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.

The APA’s judicial review provision also requires that the person seeking APA review of final agency action have “no other adequate remedy in a court,” 5 U. S. C. §704. In Clean Water Act enforcement cases, judicial review ordi narily comes by way of a civil action brought by the EPA under 33 U. S. C. §1319. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability. The other possi ble route to judicial review—applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—will not serve either. The remedy for denial of action that might be sought from one agency does not ordinarily provide an “adequate remedy” for action already taken by another agency. The Government, to its credit, does not seriously contend that other availa ble remedies alone foreclose review under §704. Instead, the Government relies on §701(a)(1) of the APA, which excludes APA review “to the extent that [other] statutes preclude judicial review.” The Clean Water Act, it says, is such a statute.

Cite as: 566 U. S. ____ (2012) 7

Opinion of the Court III

Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in de termining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to] its express language.” Block v. Community Nutrition Institute, 467 U. S. 340, 345 (1984). The APA, we have said, creates a “presumption favoring judicial review of administrative action,” but as with most presumptions, this one “may be overcome by inferences of intent drawn from the statutory scheme as a whole.” Id., at 349. The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review.

The Government first points to 33 U. S. C. §1319(a)(3), which provides that, when the EPA “finds that any person is in violation” of certain portions of the Act, the agency “shall issue an order requiring such person to comply with [the Act], or . . . shall bring a civil action [to enforce the Act].” The Government argues that, because Congress gave the EPA the choice between a judicial proceeding and an administrative action, it would undermine the Act to allow judicial review of the latter. But that argument rests on the question-begging premise that the relevant difference between a compliance order and an enforcement proceeding is that only the latter is subject to judicial review. There are eminently sound reasons other than insulation from judicial review why compliance orders are useful. The Government itself suggests that they “provid[e] a means of notifying recipients of potential vio lations and quickly resolving the issues through voluntary compliance.” Brief for Respondents 39. It is entirely consistent with this function to allow judicial review when the recipient does not choose “voluntary compliance.” The Act does not guarantee the EPA that issuing a compliance order will always be the most effective choice.

The Government also notes that compliance orders are


not self-executing, but must be enforced by the agency in a plenary judicial action. It suggests that Congress there fore viewed a compliance order “as a step in the delibera tive process[,] . . . rather than as a coercive sanction that itself

must be subject to judicial review.” Id., at 38. But the APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanc tion. And it is hard for the Government to defend its claim that the issuance of the compliance order was just “a step in the deliberative process” when the agency rejected the Sacketts’ attempt to obtain a hearing and when the next step will either be taken by the Sacketts (if they comply with the order) or will involve judicial, not administrative, deliberation (if the EPA brings an enforcement action). As the text (and indeed the very name) of the compliance order makes clear, the EPA’s “deliberation” over whether the Sacketts are in violation of the Act is at an end; the agency may still have to deliberate over whether it is confident enough about this conclusion to initiate litiga tion, but that is a separate subject.

The Government further urges us to consider that Con gress expressly provided for prompt judicial review, on the administrative record, when the EPA assesses administra tive penalties after a hearing, see §1319(g)(8), but did not expressly provide for review of compliance orders. But if the express provision of judicial review in one section of a long and complicated statute were alone enough to overcome the APA’s presumption of reviewability for all final agency action, it would not be much of a presumption at all.

The cases on which the Government relies simply are not analogous. In Block v. Community Nutrition Institute, supra, we held that the Agricultural Marketing Agree ment Act of 1937, which expressly allowed milk handlers to obtain judicial review of milk market orders, precluded review of milk market orders in suits brought by milk

Cite as: 566 U. S. ____ (2012) 9 Opinion of the Court

consumers. 467 U. S., at 345–348. Where a statute pro vides that particular agency action is reviewable at the instance of one party, who must first exhaust administra tive remedies, the inference that it is not reviewable at the instance of other parties, who are not subject to the admin istrative process, is strong. In United States v. Erika, Inc., 456 U. S. 201 (1982), we held that the Medicare statute, which expressly provided for judicial review of awards under Part A, precluded review of awards under Part B. Id., at 206–208. The strong parallel between the award provisions in Part A and Part B of the Medicare statute does not exist between the issuance of a compliance order and the assessment of administrative penalties under the Clean Water Act. And in United States v. Fausto, 484 U. S. 439 (1988), we held that the Civil Service Reform Act, which expressly excluded certain “nonpreference” employees from the statute’s review scheme, precluded review at the instance of those employees in a separate Claims Court action. Id., at 448–449. Here, there is no suggestion that Congress has sought to exclude compli ance-order recipients from the Act’s review scheme; quite to the contrary, the Government’s case is premised on the notion that the Act’s primary review mechanisms are open to the Sacketts.

Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficien cy of then-existing remedies for water pollution. Compli ance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review. The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation

conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of


regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.

***

We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judg ment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Cite as: 566 U. S. ____ (2012) 1 GINSBURG, J., concurring


No. 10–1062 _________________



[March 21, 2012]

JUSTICE GINSBURG, concurring.

Faced with an EPA administrative compliance order threatening tens of thousands of dollars in civil penalties per day, the Sacketts sued “to contest the jurisdictional bases for the order.” Brief for Petitioners 9. “As a logical prerequisite to the issuance of the challenged compliance order,” the Sacketts contend, “EPA had to determine that it has regulatory authority over [our] property.” Id., at 54–55. The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion.

Cite as: 566 U. S. ____ (2012) 1 ALITO, J., concurring


No. 10–1062 _________________



[March 21, 2012]

JUSTICE ALITO, concurring.

The position taken in this case by the Federal Govern- ment—a position that the Court now squarely rejects— would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Govern- ment, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the

2 SACKETT v. EPA ALITO, J., concurring

millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determina- tion under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of viola- tions alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.

Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule re- garding the reach of the Clean Water Act. When Con- gress passed the Clean Water Act in 1972, it provided that the Act covers “the waters of the United States.” 33 U. S. C. §1362(7). But Congress did not define what it meant by “the waters of the United States”; the phrase was not a term of art with a known meaning; and the words themselves are hopelessly indeterminate. Unsur- prisingly, the EPA and the Army Corps of Engineers in-

terpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, see Rapanos v. United States, 547 U. S. 715, 732–739 (2006) (plurality opinion); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167–174 (2001), but the precise reach of the Act remains unclear. For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase. Instead, the agency has relied on informal guidance. But far from providing clarity and predictabil- ity, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concerning wetlands can only be made on a case-by-case basis by EPA field staff. See Brief for Competitive Enterprise

Cite as: 566 U. S. ____ (2012) 3 ALITO, J., concurring

Institute as Amicus Curiae 7–13.Allowing aggrieved property owners to sue under the

Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.

- accueilcomp… · web viewthe word "intent" is used ... atmospheric or hydrologic...

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