March 21, 2012
Sackett v. EPA: Does It Mean Anything For The SEC?
Posted by David Zaring

The Supreme Court held today, 9-0, that administrative compliance orders levied by EPA under the Clean Water Act were subject to judicial review, as they are supported by fines and represent, bascially, the agency's final word on the subject.  It's not too surprising an outcome, but the government thought that it might win because it hadn't yet sought a judicial determination as to whether the land subject to the order was a wetland or not.

Some people think the government will shut down if these sorts of intermediate orders are appealable; I'm not so sure.  It does suggest, however, that when an agency like the SEC issues a TRO-like ban on someone from participating in the securities markets, they would have the right to immediately go to court to challenge that intermediate step.

What it probably does not mean, however, is that we will get an earlier resolution on Dodd-Frank than we thought.  Sackett shows that when an agency sanctions someone, even if they do so preliminarily, that person may be able to sue in court to get the sanction overturned.  It doesn't have much to do with the ability or not to get quick judicial review of rules that affect broad swathes of people.

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