The U.S. Supreme Court has agreed to hear arguments in a case that will determine whether challenges to the EPA/Army Corps of Engineers’ (Corps) Clean Water Rule (CWR), which defines waters of the United States (WOTUS), should be heard in U.S. district courts or U.S. appeals courts.
|
In National Association of Manufacturers v. Department of Defense et al., petitioners are appealing a February 2016 ruling by a three-judge panel of the Court of Appeals for the 6th Circuit, which held, in a highly fractured opinion, that the case falls within the purview of the appeals court, as that jurisdiction is defined by the Clean Water Act (CWA) in Section 509(b)(1)).
Following their loss, petitioners asked for a hearing by the full court and were denied. The petitioners subsequently petitioned the Supreme Court for certiorari. The case deals with court jurisdiction only; to date, no briefing on the merits has occurred or been scheduled in any of the district courts in which challenges to the CWR have been brought. At least one district court judge has said it would be a waste of resources to hear arguments on the merits before jurisdiction was settled.
Preference for district courts
The CWR would clarify (opponents claim it would illegally expand) the federal definition of WOTUS or those waters subject to permitting and other requirements under multiple sections of the CWA. In October 2015, the 6th Circuit ordered a stay of the rule pending clarification of jurisdiction. The many industry and state opponents of the rule prefer that district courts hear the case against the CWR because they have more flexibility to select judges that have ruled in the past against what they perceive to be federal regulatory overreach. The EPA and Corps and many intervenors on their behalf evidently believe their chances are better in the appeals courts.
Since Scott Pruitt, EPA’s pending administrator under President Donald Trump, represented Oklahoma in one challenge to the CWR, it is safe to say that the Agency will withdraw from its defense of the rule. However, states and nongovernment organizations supporting the CWR will likely continue to defend it in court.
Regarding the jurisdictional challenge, plaintiffs contend that Section 509(b)(1) allows the circuit courts to hear only those cases involving permitting and effluent limits. The CWR, the plaintiffs continue, is definitional and, therefore, does not fall within either of these actions or comport with any other actions the CWA says is reviewable by the circuit courts.
Importance of 1977 opinion
In rejecting this argument, one judge on the 6th Circuit panel agreed that the CWR does not fit neatly into the orbit of agency actions reviewable by the circuit courts. However, he noted that in 1977, the U.S. Supreme Court construed in E.I. du Pont de Nemours & Co. v. Train that Congress’s manifest intent under one CWA provision central to the CWR case was that the circuit courts should review more agency actions than a literal reading of the provision would suggest. A second judge disagreed with this interpretation but sided with the first because a previous ruling by the 6th Circuit in National Cotton Council v. EPA upholds that interpretation. A third judge said that case did not provide the flexibility the other two judges viewed as sufficient to support appeals court jurisdiction and dissented from the majority opinion.
The plaintiffs’ petition to the Supreme Court is here.