Facing a Hobson's Choice? TheConstitutionality of the EPA's AdministrativeCompliance Order Enforcement SchemeUnder the Clean Air Act

I. IntroductionThe EPA's administrative compliance orders (ACOs) are important enforcement tools used to enforce the Clean Air Act (CAA) and other environmental statutes.1 It is clear why these informal agency actions have become the EPA's most commonly used enforcement device.2 ACOs may be issued with relatively little administrative process and do not require the EPA to go to court.3 An ACO serves to provide a regulated entity with notice that the EPA regards it as in violation of statutory or regulatory requirements, and it often requires the party to take or refrain from taking a particular action in order to comply with the applicable law.4 If the regulated party does not comply, the EPA may pursue judicial enforcement or administratively assess penalties.5 Because disobeying an ACO is itself a separate violation of law over and above noncompliance with a particular provision of the Act, ACOs provide the agency with a powerful enforcement mechanism that requires a relatively modest expenditure of scarce agency resources.6 Moreover, until recently, the EPA could issue ACOs without triggering a right to pre-enforcement judicial review because courts had not viewed the orders as "final agency action."7 This gave the EPA added leverage to press regulated parties into compliance with the terms of the ACO, while retaining the discretion whether and when to seek enforcement.8From the regulated entity's perspective, however, being on the receiving end of an ACO can present a painful "Hobson's choice."9 The entity may disregard the order and risk accrual of civil and criminal penalties for either the underlying violation of the law or for violating the terms of an ACO.10 On the other hand, a party can comply with the ACO, often at enormous cost, and potentially forfeit the right to obtain judicial review of the factual or legal accuracy of the EPA's position.11In 2003, the Eleventh Circuit's decision in Tennessee Valley Authority v. Whitman12 (TVA II) held unconstitutional the EPA's use of an administrative compliance order in the context of the Clean Air Act enforcement scheme.13 The court held that the ACO scheme violated both the Due Process Clause of the Fifth Amendment14 and separation of powers principles.15 In the court's view, because failure to comply with the terms of an order can trigger severe civil or criminal penalties without giving the defendant an opportunity for meaningful judicial review, the ACO enforcement scheme could not withstand constitutional scrutiny.16 As a result, the court reasoned that ACOs could not be given legal effect, and thus their validity is not subject to review in the federal courts of appeals.17The Eleventh Circuit's decision is important because it casts a shadow over one of the EPA's most important and effective tools for enforcing the CAA against stationary sources of air pollution.18 Currently, the Eleventh Circuit is the only jurisdiction in which the EPA is no longer issuing ACOs.19 Indeed, the TVA //decision implicates the constitutionality of environmental laws in general to the extent that these statutes allow for government enforcement by means of compliance orders.20 The EPA uses ACOs to enforce a number of other environmental statutes that may be negatively impacted by the decision, including the Clean Water Act (CWA)21 and the Resource Conservation and Recovery Act (RCRA).22Despite their efficiency and efficacy for the EPA, the use of ACOs raises procedural due process concerns because it may allow the EPA to deprive a regulated party of property without offering a meaningful opportunity to be heard on the issue of whether a party violated the order or the CAA.23 These concerns turn on whether judicial review is available prior to an EPA-initiated judicial enforcement action.24 Pre-enforcement review, in a federal court, would give regulated parties the opportunity to defend themselves on the merits of the conduct underlying the EPA's order and challenge the validity of the ACO before substantial financial harm could accrue. …