February 23, 2023

Surprise! A 9th Circuit Clean Water Act opinion that a member of the Supreme Court majority could have written!

Posted on February 23, 2023 by Jeffrey R. Porter

This week three Judges of the Ninth Circuit Court of Appeals agreed that a District Court Judge exceeded his authority in vacating an EPA regulation without first determining that the regulation was unlawful.

The Trump Administration EPA regulations at issue were those that would have reduced the scope of the states’ certification authority respecting applications for discharge permits under section 401 of the Clean Water Act.  The regulations also limited the time within which a state was required to act on a request for certification.

In the “its a small world department”, another District Court Judge in the 9th Circuit had also vacated the Trump Administration EPA’s regulations defining “Waters of the United States” without first determining that the regulations were unlawful.

In both cases, the Biden Administration EPA had requested a voluntary remand of the Trump Administration regulations with an eye toward doing what the Administrative Procedures Act requires to revise (or reverse) regulations.

In both cases, the District Court Judge concluded that they had equitable jurisdiction to save those challenging the regulation or EPA the trouble of either establishing that the regulation was unlawful or notice and comment rulemaking to revise what EPA had done during the prior Administration.

The three Judges of the Ninth Circuit vehemently disagreed, holding that “the district court lacked the authority [under the Administrative Procedures Act or in equity] to vacate the 2020 Rule without first holding it unlawful. We therefore must reverse the district court’s order [regarding the section 401 rule] in its entirety and send this case back on an open record for reconsideration of the EPA’s remand motion.” 

If this holding is considered by the full Ninth Circuit Court of Appeals, and the full Court agrees with these three Judges, we could finally have a Ninth Circuit Court of Appeals Clean Water Act opinion affirmed by the Supreme Court breaking a streak continued with the Supreme Court’s opinion in Hawaii Wildlife Fund v. Maui and likely to continue with the Supreme Court’s opinion soon in Sackett v. EPA.

More importantly, District Court Judges may be less likely to step on the statutory toes of the Executive Branch whoever the Executive might be.

“By granting courts authority to ‘set aside’ agency actions ‘found to be’ unlawful, the APA not only expressly explains when a court may set aside agency action (upon a holding of unlawfulness), it also implicitly explains when a court cannot (without a holding of unlawfulness).”