Supreme Court Rules Jurisdiction for WOTUS Challenges is District Court
The U.S. Supreme Court held that challenges to an Obama-era rule defining the federal government’s authority under the Clean Water Act belong at the district rather than appellate court level, dealing a blow to executive branch agencies that argued appeals courts were the appropriate venue.
The Supreme Court unanimously ruled that district courts have jurisdiction over legal challenges to the 2015 Clean Water Rule, overruling the Sixth Circuit, which placed jurisdiction in the appellate courts. Justice Sonia Sotomayor wrote the opinion, holding that the CWA provision that lists EPA actions that circuit courts have exclusive power to review does not cover the waters of the U.S. rule regulation enacted by Obama Administration’s EPA and Army Corps of Engineers.
Sotomayor found Congress enumerated seven categories of EPA action triggering immediate circuit court review. All other EPA actions remain in the jurisdiction of the federal district courts.
The federal government pointed to language in 509(b)(1)(E) of the CWA arguing the courts of appeals must review any EPA action “approving or promulgating any effluent limitation or other limitation.” Importantly, this language in the Clean Water Act concerns the discharge of pollutants. Essentially, to fit within this provision of the Clean Water Act, the Waters of the US Rule must be characterized as a discharge control rule or a limitation to discharge of pollutants. The Supreme Court noted that there is no language in the Act that specifically addresses this characterization. For that reason, the Court looked to statutory construction and determined it does not support construing WOTUS to be a limit on pollutant discharge.
The government also asserted that WOTUS falls within Section 509(b)(1)(F), which addresses direct appellate review of the issuance or denial of permits, arguing that EPA actions deciding a property is a “water of the U.S.” is an action akin to the denial of a permit. The Supreme Court disagreed, stating the WOTUS rule, and EPA’s jurisdictional decisions pursuant to the rule, do not involve decisions on individual permit applications.
Several district court cases had been put on hold waiting for this decision. In addition, the Sixth Circuit’s nationwide stay, issued October 9, 2015, is now invalidated. The Sixth Circuit stayed the rule’s implementation nation-wide based on twelve petitions challenging WOTUS in eight different appellate courts, including the Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and District of Columbia Circuits. These petitions were consolidated by the Judicial Panel on Multidistrict Litigation (JPML). JPML randomly selected the Sixth Circuit to hear the consolidated cases. Several dozen additional district court cases have been filed across the United States challenging WOTUS creating a complex web of litigation and jurisdictional issues. A preliminary injunction against enforcement of WOTUS is in place in North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico, in a multi-party suit filed in Federal District Court in North Dakota. The Sixth Circuit noted that because of the injunction in the District Court of North Dakota, a nationwide stay was necessary to maintain the status quo everywhere while the various cases proceed.
As the cases proceed through the district court and then appellate court, the WOTUS rule may be the new law of the land, until a new stay is issued, or the challenges are decided.
Previously under the Clean Water Act, only water with a significant nexus to traditional navigable waterways could be regulated. Under Obama’s WOTUS, included in the “Waters of the United States” (WOTUS) are isolated depressions in the ground over long distances from each other could be combined as similar water features and if one of those depressions has water in it at any time (even only for a moment) that tangentially or through intermediary features connects to navigable water, then EPA will claim it has jurisdiction to regulate any activity on that land. During the stay, the states were required to implement the pre-WOTUS Clean Water Act jurisdictional definition of “waters of the U.S,” which required a nexus articulated by the U.S. Supreme Court in Rapanos v. U.S.
The California environmental lawyers and water lawyers at Bick Law LLP have been closely following the challenge to WOTUS in the courts and the implications to property owners, farmers, vineyard owners, and other industry groups.