High Court Mulls Right Place for Water Rule Review

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By Amena H. Saiyid

Identical legal challenges to a regulation describing the reach of the federal water quality law could sprout up in district courts across the country unless the U.S. Supreme Court steps in, the federal government warned.

Instead, it would be more efficient for cases to be heard by an appellate court even if the Clean Water Act doesn’t explicitly give those courts jurisdiction. It’s an idea the Supreme Court justices mulled at oral argument Oct. 11 as they sought to determine where challenges to the 2015 rule, known as Waters of the U.S., should eventually be heard (Nat’l Ass’n of Mfrs. v. DOD, U.S., No. 16-299, oral argument 10/11/17).

Allowing various district courts to hear the challenges individually would be time consuming and costly, Chief Justice John Roberts said.

“You could have dozens of the district courts engaged in that same activity, and then it would have to be done all over again when you get to the court of appeals,” Roberts said, calling it “inefficient.”

The federal government wants litigation over the water jurisdiction rule to go before the appeals court, in part to save money, time, and effort, and in part because of its reading of the Clean Water Act. However, many industry groups, at least 30 states, and some environmental groups prefer to the cases to be heard in the district courts, where they have more time to file challenges and can tailor arguments to localized impacts on waters.

“We would like to litigate these issues in the district court because we think that going through the district courts and [then to] the courts of appeal will produce more accurate decision-making, will tee the case up better for this court to review,” Timothy Bishop of Mayer Brown LLP, who argued on behalf of the National Association of Manufacturers and other industry groups, told the court.

‘Efficiency Doesn’t Conquer All’

Bishop conceded to Roberts that “there are inefficiencies on both sides.” But the Supreme Court in Sackett v. EPA noted that “efficiency doesn’t conquer all,” Bishop said. In Sackett, the Supreme Court ruled unanimously that landowners had a right to challenge enforcement proceedings.

Though it may be more efficient for an appellate court to hear the lawsuits, the Clean Water Act limits federal appeals court reviews to seven specific Environmental Protection Agency actions, such as setting limits on industrial wastewater discharges and approving discharge permits.

“Had Congress meant the courts of appeal to review all national or definitional rules, it would have said so, as it did in the Clean Air Act, instead of listing a handful of particular EPA actions down to the statutory subsection,” Bishop said.

Since the law requires federal appeals courts to review Clean Water Act permits, they should also have jurisdiction over the underlying regulation—the 2015 waters of the U.S. rule—that defines which waters receive those protections, Rachel Kovner, assistant to the U.S. Solicitor General who argued for the government, said.

Kovner questioned why Congress would choose to “bifurcate” review for wastewater discharge limits, but not where those waters were located. “It doesn’t make sense,” she said.

Issue Likely to Return

The EPA and U.S. Army Corps of Engineers under the Trump administration are in the process of rescinding the Obama-era rule and writing a new one. Kovner said future challenges should be sent to an appellate court because the issue would arise without a decision from the Supreme Court.

Justice Ruth Bader Ginsburg asked whether the government’s decision to rescind the rule means the court doesn’t need to rule.

Bishop said the government hasn’t indicated when it will finally rescind the rule, but reminded the court that environmental groups have pledged to challenge the rescission immediately upon its publication.

Blan Holman, managing attorney with the Southern Environmental Law Center who attended the argument, thought it was notable that the Supreme Court understood the question of what court will hear the challenges will return when the Trump administration rescinds the rule. Holman told Bloomberg BNA he expects the Supreme Court won’t moot the case because the government admitted that the same legal questions will arise when the 2015 rule is rescinded and a replacement rule put in place.

“No doubt this is going to be an ongoing issue,” Holman said.

After the oral arguments, Bob Irvin, president of the nonprofit American Rivers, told Bloomberg BNA his group will challenge any attempt to undo the Obama rule.

The government’s weakest argument was in persuading the court to construe the Clean Water Act language that applies to the effluent limit and other limits to the water rule, said Irvin, who attended the arguments. Despite this weakness, Irvin said, Kovner did a brilliant job of making the government’s case about inefficiency.

Fairness Concerns

Ohio State Solicitor Eric Murphy, who represented 30 states opposed to the rule, directed the court’s attention to the fairness issue in pushing to have the cases heard in the district courts.

Every single court case dealing with the the jurisdictional scope of the Clean Water Act arose as enforcement proceedings in district court cases, he said. These cases wouldn’t be allowed under the government’s approach because of the 120-day limit to file challenges to a rule in a federal appeals court, Murphy said.

When asked about that by Roberts, Kovner responded that the property owners would still have the right to challenge any enforcement action or federal finding of a protected water or wetland, in a district court.

Court Focuses on Practicalities

Neil McAliley, a Miami-based attorney with Carlton Fields Jorden Burt P.A., who didn’t attend the case, said he was struck by the court’s emphasis on the practical implications.

A favorable Supreme Court ruling for the government would work in favor of the Trump administration because it is generally easier to defend a rule in a federal appeals court, he said.

Richard Stoll, a retired attorney, said he agreed with Justice Elena Kagan who described the question of court jurisdiction a “themeless pudding.”

“More than two years after the water rule was issued, countless pleadings have been filed in dozens of courts with no resolution,” Stoll told Bloomberg BNA in an email. “As the justices were clearly torn between concerns for judicial efficiency and the plain words of the statute, they were also disturbed that the case could become moot by a Trump rule revocation.”

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