Supreme Court Muddies Waters for EPA Water Rule

Federal district courts given jurisdiction over Waters of the U.S.

States seeking to maintain control over waters within their borders saw a victory from the U.S. Supreme Court last week.

The Supreme Court on Jan. 22 moved jurisdiction over an Environmental Protection Agency water rule to the lower federal district courts rather than circuit appellate courts. The move removes the issue out of the scope of direct federal control and creates a system where individual states have more power to make direct challenges to the rule and that case law can be developed more on a case-by-case basis rather than with sweeping judgments that might come from appellate courts.

In an opinion penned by Justice Sonia Sotomayor, the U.S. Supreme Court ruled unanimously that the Obama-era’s “Waters of the U.S.” rule should be handled by federal district courts in initial cases rather than by federal circuit appellate courts, as several issues dealing with the EPA’s Clean Water Act are.

The Waters of the U.S. rule was created to define what waters are included in the EPA’s Clean Water Act and took away control over several waters from states and put them within the scope of the federal government’s jurisdiction; the definition of that phrase has drawn challenges from dozens of parties in federal district and circuit courts as states and industry groups question when waters are considered part of the national system of “navigable waters,” but spinning off those challenges is one focused on which court has jurisdiction over the Waters of the U.S. rule.

The parties in the case initially brought challenges to the rule in district courts around the country, but after the challenges were consolidated, the 6th Circuit Court of Appeals ruled that it had the authority to review the challenges, not the district courts, because it found that the challenges fell within a list of seven subsections of the act that were under appellate courts’ jurisdiction. 

The National Association of Manufacturers filed a motion to dismiss on lack of jurisdiction.

The specific subsections in question state that appellate courts have exclusive jurisdiction to review any EPA action “in approving or promulgating any effluent limitation” within other subsections of the Clean Water Act and “in issuing or denying any permit” under another subsection. 

The Supreme Court found that neither of the subsections cited by the government dealt with the Waters of the U.S. rule since “it announces a regulatory definition for a statutory term” and doesn’t deal with effluent limitations or permits.

The court also rejected arguments from the government that putting the challenges under the scope of the courts of appeals would promote efficiency and uniformity and said that while it might accomplish both, it was not the intent written into the law by Congress. 

The Supreme Court reversed and remanded the case and ordered the 6th Circuit to dismiss the petitions to review that had been filed. 

It is now likely that a nationwide stay on the Waters of the U.S. rule will be lifted and that individual challenges in the district courts will continue to arise. 

The ruling also keeps in effect a preliminary injunction from a federal district court in North Dakota in favor of a coalition of states including Colorado and 12 others.

Paul Seby, a special assistant attorney general for the state of North Dakota and a Greeneberg Traurig shareholder in Denver said that the decision allows that case to continue on to seek a ruling on the merits while also opening the door for other states to challenge the rule for themselves. The 13-state coalition is continuing to pursue its own challenge to the case while the rule goes back into effect for other states.

And those questions regarding efficiency and uniformity are why it’s important for the individual cases to continue, according to Seby.

“The heart of this is the tension between state and federal authority,” Seby said. “This is not about whether to have clean water and protect water but who does it and with what knowledge and consideration.” He said the patchwork that will likely arise is a favorable outcome.

“That’s the function of the district courts,” he said. “That’s how it’s designed to work. The Supreme Court will step in to break the differences of opinion.”

Meanwhile, the Trump administration has previously said it plans to redraft the Waters of the U.S. rule, and EPA head Scott Pruitt had been involved in a lawsuit against the EPA on behalf of Oklahoma when he served as the state’s attorney general. 

Seby said that the plan for the states’ lawsuit is to continue as planned since any Trump administration revisions to the rule that get overturned will put the Waters of the U.S. Rule back into effect. He said they are seeking a ruling on the merits and are pressing for an expedited briefing schedule.

— Tony Flesor

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