The issue of judicial efficiency was raised by Chief Justice John Roberts in oral arguments in the U.S. Supreme Court in a case that asks whether U.S. District Courts or U.S. Appeals Courts should hear challenges to the federal Clean Water Rule (CWR, also known as WOTUS for waters of the United States).
The EPA and U.S. Army Corps of Engineers (Corps) jointly issued the CWR in June 2015. The rule provided an expanded definition of WOTUS or all those surface waters that are subject to the many provisions of the Clean Water Act (CWA).
The CWR has been fiercely opposed by farmers and other industry groups. Also, the Trump administration is developing a rule to withdraw the CWR, after which it says it will issue its own definition of WOTUS. These ongoing actions caused Justice Ginsberg to ask if the case against the CWR is moot.
6th Circuit Ruling and Stay
In the case (National Association of Manufacturers v. U.S. Department of Defense), plaintiffs, which include industry groups and some states, are appealing a majority ruling by the U.S. Court of Appeals for the 6th Circuit, which found that challenges to the CWR are appropriately heard by U.S. Courts of Appeal, not by U.S. District Courts. The case does not address challenges to the merits of the CWR, which were stayed by the 6th Circuit pending resolution of the jurisdictional issue.
Industry favors the District Court venue where challenges are less encumbered by deadlines and other rules when compared to cases brought before the appellate courts. The federal government favors the appellate venue, and, in an odd coalition, is supported by major environmental groups. Should the Supreme Court decide that the 6th Circuit erred, the stay would be nullified and the many cases against the rule pending before the district courts will proceed.
Other Limitation
According to the plaintiffs, CWA Section 1369(b) states that the Courts of Appeals have jurisdiction over specific actions such as effluent standards and permit issuance or denial. But, the plaintiffs continue, the CWR defines which waters are subject to the CWA and since it is a definition, does not fall into any category of action under Section 1369(b); therefore, challenges to the CWR are under the jurisdiction of the district courts.
The government counters that the CWR fits in the category of “other limitation,” a term included in Section 1369(b)(1)(E), which is also a category subject to review by the Courts of Appeals.
Efficiency and Fairness
Should the Supreme Court decide that jurisdiction is properly with the district courts, all those courts will be forced to review the same materials. What’s more, the administration’s resources will be stretched thin in engaging in litigation all over the country. This concerned Chief Justice Roberts, who addressed the attorney for the plaintiffs.
“[O]ne of the consequences that your opponent points out is that if you’re correct and these actions are brought in the district court, each of the district courts will have to review the entire administrative record, and presumably, you could have dozens of the district courts engaged in that same activity, and then it would have to be done all over again when you get to the court of appeals.”
Counsel for the plaintiff responded that while efficiency is a matter of importance, it should not be given more weight than fairness.
Mootness
Considering that the EPA is currently involved in a rulemaking to withdraw the rule, Justice Ginsberg asked if the issue was moot. Attorneys on both sides responded that the EPA/Corps’ proposal to withdraw the rule generated over 500,000 public comments, indicating that any final rule to withdraw the CWR is not imminent. Also, the attorney for the government said a ruling on jurisdiction is important because the issue will come up again should the administration follow through with its plan to promulgate a new WOTUS definition, which will likely be the target of many challenges.
A transcript of the oral arguments is here.