This post was written by Jennifer Smokelin
As we've discussed on the blog, in late 2010, homeowners who lived near drilling operations of Range Resources in Parker County, Texas, reported problems with their tap water, complaining that it was bubbling and even flammable. On December 7, 2010, the U.S. Environmental Protection Agency (USEPA) issued an emergency order under the Safe Drinking Water Act to the company to take immediate action to protect the homeowners. Range Resources protested the order and the case was hard fought for over a year. In short, Range Resources argued that it was entitled to pre-enforcement review and that USEPA is obligated to show facts supporting the underlying elements of the violation in court to secure injunctive relief and impose civil penalties. A few days ago, USEPA withdrew the order, according to documents filed last week in the U.S. District Court of the Northern District of Texas.
USEPA's surprise withdrawal came less than a week after the unanimous U.S. Supreme Court decision is Sackett v. United States Environmental Protection Agency, et al., (Case 10-1062) (Sackett). In Sackett, the U.S. Supreme Court held that USEPA's order under the Clean Water Act directing a homeowner to remove fill material from an area that USEPA alleged included regulated wetlands was final, ripe, and immediately reviewable. We connected the dots and discussed that, while Sackett was decided under a different statute (the Clean Water Act), there were implications in Sackett to the Range Resources case under the Safe Drinking Water Act. Even though USEPA's documents withdrawing the order in the Range Resources case do not rely on Sackett expressly, one can surmise based on the breadth of the Sackett opinion and the analysis previously provided in this blog that the holding in Sackett had at least something (if not everything) to do with it. Drawing from these recent events, recipients of any USEPA administrative enforcement order have increased incentives to carefully analyze their options about challenging the order prior to enforcement.