Supreme Court: WOTUS challenges must start in district courts
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January 24, 2018
Supreme Court: WOTUS challenges must start in district courts

In an unusual development, the U.S. Supreme Court, which is almost always divided over interpretations of U.S. environmental law, ruled unanimously that challenges to the EPA/Army Corps of Engineers’ (Corps) 2015 Clean Water Rule (CWR) must be heard first in U.S. district courts, not federal appeals courts.

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The decision, written by Justice Sonia Sotomayor, adds yet another twist in the complicated progression of actions that followed issuance of the rule. Mainly, the opinion reversed a stay of the CWR—also called the WOTUS rule (for waters of the United States), the term preferred by Sotomayor—issued by the U.S. Court of Appeals for the 6th Circuit shortly after the rule’s issuance. This appears to indicate that the WOTUS rule is now in effect.

The EPA/Corps have issued several proposals to blunt the effect of the WOTUS rule. One proposal would rescind the WOTUS rule and recodify the pre-2015 regulatory definition of WOTUS. A second proposal would extend the effective date of the WOTUS rule by 2 years after that proposal is made final. The EPA/Corps have also announced their intention to propose a replacement definition of WOTUS.

The question then is, Will the EPA/Corps and states authorized under the Clean Water Act (CWA) implement and enforce a rule with broad implications, which the federal government has every intention of withdrawing and replacing? The agencies have yet to respond to the Supreme Court ruling.

Judicial venue only

The Supreme Court’s opinion addresses only the matter of the judicial venue for challenging the WOTUS rule and says nothing about the legality of the rule or the merits of challenges to it. The WOTUS rule is a definition of WOTUS, or those waters over which the EPA/Corps have regulatory authority. In the CWA, Congress described WOTUS as navigable waters, a phrase that inadequately addresses the complexity of surface waters in the United States and that has resulted in competing claims of under- and overregulation. In writing the WOTUS rule, the EPA/Corps, under President Barack Obama, said the rule responded to requests from many states and stakeholders to clarify CWA jurisdiction. Regulated industries claimed the rule went too far, for example, extending government jurisdiction to land areas that are neither navigable nor even wet during much of a typical year.

WOTUS rule—Not an effluent limitation

In the current case (National Association of Manufacturers v. U.S. Department of Defense), petitioners argued that the CWA plainly indicates that the appellate courts must be the first to hear challenges only to seven EPA actions specifically listed in CWA Section 1369(b)(1). Two of those actions are at issue in this case: (1) those “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” (subparagraph E), and (2) those “issuing or denying any [National Pollutant Discharge Elimination System (NPDES)] permit” (subparagraph F). Essentially, the government—supported ironically by environmental groups that favor the WOTUS rule—argued that the rule is encompassed by either of those two categories.

For example, the government contended that the WOTUS rule “readily qualifies as an action promulgating or approving an ‘other limitation’ under Section 1311,” because the rule establishes the “geographic scope of limitations promulgated under Section 1311.”

The Court disagreed.

“For starters, Congress’ use of the phrase ‘effluent limitation or other limitation’ in subparagraph (E) suggests that an ‘other limitation’ must be similar in kind to an ‘effluent limitation’: that is, a limitation related to the discharge of pollutants,” stated Sotomayor. “An ‘other limitation,’ for instance, could be a non-numerical operational practice or an equipment specification that, like an ‘effluent limitation,’ restricts the discharge of pollutants, even though such a limitation would not fall within the precise statutory definition of ‘effluent limitation.’”

Sotomayor continued that “this demonstrates that an ‘other limitation,’ at a minimum, must also be some type of restriction on the discharge of pollutants. Because the WOTUS rule does no such thing, it does not fit within the ‘other limitation’ language of subparagraph (E).”

The government fared no better under Subparagraph F.

“The WOTUS rule neither issues nor denies a permit under the NPDES permitting program,” writes Sotomayor. “Because the plain language of subparagraph (F) is ‘unambiguous,’ ‘our inquiry begins with the statutory text, and ends there as well.’” (quoting BedRoc Limited, LLC v. United States, U.S. Supreme Court, 2004)

Extratextual arguments fall short

The government also offered several “extratextual” considerations to support its position. For example, the government argued that initial circuit court review of the WOTUS rule would avoid an irrational bifurcated judicial-review scheme under which federal courts of appeals would review individual actions issuing or denying permits, whereas district courts would review broader regulations governing those actions. The Court expressed sympathy for this argument, but repeated that it is not empowered to rewrite what Congress had written.

The government also said that challenges that went directly to the appellate courts shortened litigation. Any such petition must be filed within 120 days after the date of the challenged action. In contrast, petitioners have 6 years to lodge complaints in the district courts. Therefore, the government argued, having complaints resolved directly by the appeals courts facilitates quick and orderly resolution of disputes over the WOTUS rule. The Court responded that Congress may have placed some value on efficient resolution but not enough to change the plain meaning of CWA’s text.

EPA/Corps’s rationale

As a matter of policy, the current EPA/Corps are probably sympathetic to the broad flexibility the decision provides in challenging WOTUS first in the district courts. However, from a resource standpoint, the agencies clearly find little that is attractive in the obligation they will have to dispatch attorneys to participate in 18 separate WOTUS challenges in district courts. The Judicial Panel on Multidistrict Litigation (JPML) had denied the government’s request to consolidate and transfer these actions to a single district court. Conversely, the JPML consolidated in the 6th Circuit a similar number of challenges filed in circuit courts. The Supreme Court’s ruling ensures that both the district courts and appellate courts will be fielding complaints against the WOTUS rule and its successor rules well into the future, at least until the agencies are able to finalize a new definition of WOTUS and probably far beyond that as well.

The Supreme Court’s opinion is here.

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