Energy and Environment Monitor
At Least We Know Now Where to File Suit
January 24, 2018
By: Blair M. Gardner
The U.S. Supreme Court decided a case on Monday of this week that environmental law nerds having been waiting breathlessly for since 2015. It concerns the EPA and Corps of Engineers rule promulgated that year defining the “waters of the United States” (‘WOTUS”). By that rule the agencies sought to delineate the geographic reach of those waters and the statutory programs which depend upon their scope. Mining companies, farmers and developers have sought clarity over this issue for decades and will be a little disappointed. The decision “is not about the substantive challenges to the WOTUS Rule. Rather, it is about in which federal court those challenges must be filed.” (Slip Op. at 1.)
When the rule was promulgated in 2015, numerous persons challenged the rule in various federal district courts across the United States, the courts which customarily review challenges to administrative actions. ‘Uncertainty surrounding the scope of the Act’s judicial-review provision had also prompted many parties . . . to file “protective” petitions for review in various Courts of Appeals to preserve their challenges in the event that their District Court lawsuits were dismissed for lack of jurisdiction[.]’ (Slip Op. at 7.) This was prudent lawyering because the Clean Water Act does provide for exclusive review of discrete categories of agency actions under 42 U.S.C. § 1369(b)(1).In the district courts, most of the challenges were dismissed, but the federal district court in North Dakota retained an action. All of the challenges in the courts of appeal were consolidated before the Sixth Circuit which held that its jurisdiction was exclusive. The three judge panel which decided the case, however, issued three opinions. One judge concluded that the CWA granted jurisdiction to the courts of appeal, and one denied that that the statute did. The third judge agreed that CWA jurisdiction for review was solely in the courts of appeal, but that it was based on a prior decision of the Sixth Circuit which was incorrectly decided. Because the court was bound by precedent, its subject matter jurisdiction must be honored.
Such an opinion virtually guaranteed review by the Supreme Court. In a careful review of section 1369(b)(1) and the text of the Clean Water Act, Justice Sotomayor writing for a unanimous Court concluded that the WOTUS Rule was not the kind of agency action that could be reviewed by the courts of appeal. Challenges to the rule, including future challenges, will need to be brought before a district court. For resource companies, this ruling is positive for two reasons. First, it creates an opportunity for the persons most affected by a future rule to seek review in the district courts where their activities actually occur. Second, it diminishes the possibility for either federal agencies or citizens’ groups to forum shop for courts of appeals perceived to be favorably disposed to agency rulemaking.
Although Monday’s decision does mean that the current nationwide stay of the 2015 WOTUS Rule will not remain in place, it does not immediately lift the stay. The Supreme Court will formally return the case to the Sixth Circuit on Feb. 26, after which time the Sixth Circuit will relinquish jurisdiction, which will dissolve the current stay of the rule. In the interim, EPA and the Corps have previously announced that they intend to add a new applicability date to the 2015 Rule prior to the Sixth Circuit lifting its stay. The agencies then intend to finalize their new proposed WOTUS rule. These actions will have the effect of delaying implementation of the rule nationwide by two years.
The case in National Association of Manufacturers v. Department of Defense, No 16-299, decided on January 22, 2018.
This article was authored by Blair M. Gardner, Jackson Kelly PLLC.