Regulatory Developments

WOTUS Case Will Not Be Delayed by Supreme Court

Without comment or explanation, the U.S. Supreme Court denied a motion from the Department of Justice (DOJ) to hold briefings on litigation affecting the EPA/Army Corps of Engineers’ (Corps) Clean Water Rule (CWR), which defined the term waters of the United States (WOTUS), in abeyance.

river / WOTUS
The case, National Association of Manufacturers v. Department of Defense et al., concerns jurisdiction—that is, whether merit-based challenges to the CWR should be heard by multiple U.S. district courts or by U.S. appeals courts. In February 2016, the U.S. Court of Appeals for the 6th Circuit ruled that it and not the district courts had jurisdiction over the case. At the same time, the 6th Circuit said that opponents of the rule had a substantial chance of winning their case on the merits; accordingly, the court ordered that the rule be stayed pending resolution of the jurisdictional and merit-based challenges. On January 13, 2017, the Supreme Court granted a petition from opponents of the rule to address the question of whether the 6th Circuit erred when it held that it has jurisdiction to decide the case.

There are various reasons why opponents of the CWR prefer the district court venue. By splintering challenges around the country, these parties believe they can have their petitions heard by judges who will favor their arguments. Also, appeals of a loss in an appeals court must be filed in a matter of months, while there is a 6-year deadline for appeals of district court opinions.

Rescind or Revise

In any event, the election of President Donald Trump shifted the pieces in the case. Specifically, on February 28, 2017, the president signed an Executive Order (EO) directing the EPA and the Corps to review the CWR and publish for notice and comment a proposed rule rescinding or revising the rule. On the same day, the EPA and the Corps signed a Federal Register (FR) notice announcing their intent to issue a proposed rule consistent with the EO.

Since the CWR will almost certainly be revised or rescinded, Noel Francisco, DOJ’s acting solicitor general, notes in DOJ’s motion that any determination about jurisdiction may have little significance to the rule currently under review by the 6th Circuit.

“Given that possibility, it would be wasteful for the parties and potential amici to brief the jurisdictional issue at this time,” wrote Francisco. “Because the court of appeals has issued a nationwide stay on the CWR, the rule will not place any burden on regulated entities while the briefing schedule is held in abeyance.”

Evading APA Requirements

In opposing the motion to hold the case in abeyance, several environmental groups argued that an indefinite delay of the litigation would essentially allow the EPA/Corps to use the judicial process to evade Administrative Procedures Act (APA) requirements for repealing or revising the CWR through formal rulemaking.

“Legally, the agencies can revise or rescind the rule only after giving the public an opportunity to comment on the proposed revision or rescission and only after the agencies have given a reasoned explanation, with record support, for their action,” state the groups (https://www.nrdc.org/sites/default/files/oppose-scotus-wotus-briefing-schedule-delay_20170315.pdf). “Because the 6th Circuit has stayed the rule pending litigation, an indefinite abeyance of the briefing schedule would be the functional equivalent of an unlawful vacatur of the rule without notice and comment. The agencies might take no action on the rule and make no revisions to it for years, but because the Rule is stayed, in practice they would have accomplished an immediate rescission of the Rule with no public process. The agencies cannot ‘circumvent the rulemaking process through litigation concessions’ or other litigation tactics, ‘thereby denying interested parties the opportunity to oppose or otherwise comment on significant changes in regulatory policy.’”