Will Justices Review Question of Venue for Water Rule Case?

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By Amena H. Saiyid

Oct. 11 — Confusion over which federal court should hear challenges to the Clean Water Rule may provide incentive for the U.S. Supreme Court to resolve that question before it is asked to review the regulation on its merits, several attorneys told Bloomberg BNA.

Others disagreed, citing the high court’s 4-4 split and its heavy workload.

“I think there is a very good chance, in all the circumstances, that the court will grant interlocutory review here,” Timothy Bishop, a partner at Mayer Brown LLP, told Bloomberg BNA in an Oct. 11 e-mail. An interlocutory action involves questions of law that must be resolved at the appellate court level before a trial may proceed.

Bishop is representing the National Association of Manufacturers, which petitioned the Supreme Court in early September over the U.S. Court of Appeals for the Sixth Circuit’s decision to retain jurisdiction over nearly two dozen consolidated challenges to the rule (RIN:2040-AF30), which seeks to clarify the scope of the Clean Water Act.

This is “something that should be resolved before a great deal of time and money is spent litigating the merits,” Bishop said in response to a question about the chances that the Supreme Court would accept the petition after 32 states filed a brief Oct. 7 backing the manufacturers’ petition ( Nat’l. Ass’n of Mfrs. v. DOD , U.S., No. 16-00299, brief 10/7/16 ).

That petition also was supported in a brief filed Oct. 7 by a 19-member coalition of business, agriculture and industry groups represented by the American Farm Bureau Federation. A coalition of mostly Western cattlemens’ and mining groups represented by the Pacific Legal Foundation also filed its brief in support of the petition on Oct. 6.

The states and the two industry coalitions claim the Sixth Circuit erroneously ruled that 33 U.S.C. §1369(b)(1) vests exclusive jurisdiction with appeals courts to review challenges to the Clean Water Rule. That is because the Sixth Circuit upheld the administration’s “pragmatic” reading of 33 U.S.C. §1369(b)(1), which applies to seven specific categories of Clean Water Act programs, none of which apply to the rule in question.

The 32 states and the two separate business and industry coalitions also are involved in litigating the rule in the Sixth Circuit, which has stayed the rule nationwide and has now set the briefing schedule to argue the rule’s legality to start Nov. 1.

‘Guardedly Optimistic.’

Reed Hopper, the Pacific Legal Foundation’s principal attorney who filed the brief, said he is “guardedly optimistic” that the Supreme Court will accept the case even though it is an interlocutory appeal.

The appellate courts, he said, are often disinclined to review interlocutory decisions because, theoretically, the court will have an opportunity to address the issue when the entire case is appealed.

“But our brief points out that this case is different because the interlocutory decision is about venue and if the court waits to review that part of the case, it may be a monumental waste of resources if the Supreme Court decides the case should have been litigated in the district courts to begin with,” Hopper said.

Stephen Miano, shareholder attorney with the Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, was less optimistic saying the odds are low given the press of work before the Supreme Court and the fact that this is not a final decision in the case.

“Moreover, given the even number of justices on the court, it remains unclear whether the court would issue any clear ruling on this jurisdictional issue anyway,” he said. “My guess is that the court will wait to see how the issue is resolved by the lower courts and take the case once a more definitive decision on the overall case is presented.”

Kirsten Nathanson, a partner in the Washington D.C. office of Crowell & Moring LLP, was of the opinion that it is hard to sway the Supreme Court without a ninth justice.

Lineup of States Not Enough

At the same time, she said the Sixth Circuit’s 1-1-1 decision was highly fractured, and that the Clean Water Act provision in question has come up in the water transfer case and the forest roads case, thus illustrating the need for the Supreme Court to be involved.

“That said, there may not be enough interest to take an interlocutory appeal, even with that impressive lineup of states in support,” Nathanson said in an e-mail.

Patrick Parenteau, a Vermont Law School Professor who specializes in Clean Water Act, also rated the chances of a Supreme Court acceptance at “slim to none.”

“This isn’t a political poll,” Parenteau told Bloomberg BNA. “The court is more likely to wait until the Sixth Circuit has sorted through all of the issues and refined the questions needing Supreme Court review. There is an outside chance the court might take it if at least five members are convinced the Sixth Circuit got it wrong, but I don’t think that will happen given the chaos that would result with all of the district court cases proceeding at once.”

Parenteau was alluding to the dozens of lawsuits filed in at least a dozen federal district courts, half of which were dismissed after the Sixth Circuit in April reaffirmed its jurisdiction over district courts to hear Clean Water Rule challenges.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

A brief by the 32-state coalition in support of Nat’l Ass’n. of Mfrs. v. DOD in the U.S. Supreme Court is available at http://src.bna.com/jfo.

The brief by the American Farm Bureau-led coalition in U.S. Supreme Court is available at http://src.bna.com/jfn. The brief by the Pacific Legal Foundation-led coalition in the U.S. Supreme Court is available at http://src.bna.com/jfm.

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