Posted on January 24, 2018 by Rick Glick
In a rare moment of clarity in the benighted history of the Waters of the United States or WOTUS rule, a unanimous Supreme Court declared that jurisdiction to review the WOTUS rule lies in the District Courts and not the Courts of Appeal. The immediate effect of the January 22 ruling in National Assn. of Manufacturers v. Dept. of Defense is to lift the nationwide stay of the rule imposed by the Sixth Circuit—which held that the appellate courts have original jurisdiction over the rule—thus reigniting a lot of dormant trial court challenges.
The Clean Water Act applies to “navigable” waters, which is defined simply as “waters of the United States, including the territorial seas.” EPA and the Army Corps of Engineers administer the CWA, and have tried without much success to refine this vague definition. The latest attempt is the WOTUS rule, adopted by the Obama EPA in 2015. The issue in National Assn. of Manufacturers is not whether that attempt hits the mark, but in which court should challenges be heard.
As noted in Bob Brubaker’s take on this case, the Court looked to the plain language of the statute, and to context when further explanation is needed. The CWA extends original jurisdiction to the Circuits for EPA “approving or promulgating any effluent limitation or other limitation.” The government argued that the WOTUS rule falls within “any . . . other limitation.” The Supreme Court rejected that argument, holding that such other limitations must be related to effluent limitations, and the WOTUS rule just establishes a definition that would apply generally to the scope of CWA. The Court also rejected applicability of another CWA basis for Circuit Court jurisdiction advanced by the government, “issuing or denying any [NPDES] permit,” concluding simply that the WOTUS rule is not the same as permit issuance.
So what difference does it make if a trial judge or an appellate judge makes the initial decision on WOTUS? WOTUS has drawn a multitude of challenges in both the District Courts and Courts of Appeals, including some in which plaintiffs filed in both courts to be on the safe side. The case will end up at the Supreme Court anyway, right?
True, but consider that the Sixth Circuit consolidated all the challenges in other Circuits and issued a decision that applied across the country. The district court litigation has not been consolidated, and some cases have come to different conclusions, with many remaining to be litigated. So, we can expect years of litigation in many different courts, followed by years of appeals heard by the Circuits, and finally to the Supreme Court . . . again.
But wait, Scott Pruitt’s EPA has initiated a rulemaking process to rescind and replace the WOTUS rule, so wouldn’t that moot the pending challenges to the rule? It would not. EPA has announced it is delaying the effective date of the 2015 rule for two more years to allow the Agency to develop its replacement. But, in the meantime, the 2015 WOTUS rule remains in place.
The practical result is that the current round of cases in the District Courts will continue, followed — if not accompanied — by a new round of litigation challenging the proposed change of effective date, and the proposed rescission and replacement rules. Safe to say there will be no certainty on the definition of WOTUS and the scope of Clean Water Act jurisdiction for many years to come.