Patchwork Water Pollution Rule Takes Effect After Supreme Court Ruling

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By Amena H. Saiyid

Most of the country will be subject to an Obama-era regulation defining the reach of the nation’s water pollution law, but the regulation still faces a bevy of legal challenges across the country in a process that promises to be “chaos.”

“You can have more than 50 district courts looking at this rule, and you can end up with as many different opinions as there are courts,” Georgetown Law Professor Hope Babcock told Bloomberg Environment, calling the process “chaotic.”

The U.S. Supreme Court unanimously held Jan. 22 that litigation over the 2015 Clean Water Rule will be heard in federal district courts across the nation. That means that the U.S. Court of Appeals for the Sixth Circuit’s nationwide hold on the regulation was struck down. However, a 13-state stay issued by the U.S. District Court for the District of North Dakota could be revived, leading to a patchwork of regulations across the country.

“Yes, the stay by the Sixth Circuit is no longer in effect,” Steven Miano, an attorney with Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, told Bloomberg Environment.

The Trump administration, which is in the process of replacing the Clean Water Rule, is unlikely to enforce the regulation. However, it has not yet completed plans to push back to 2020 implementation of the rule that defines the waters and wetlands protected by the Clean Water Act and subject to regulatory regimes, including federal permits, oil spill prevention requirements, and state water quality certifications.

However, the Environmental Protection Agency and the U.S. Army Corps of Engineers—which co-wrote the rule also known as Waters of the U.S.—expected this decision and put a plan in place to level the playing field and ensure certainty for states and the regulated community, EPA spokeswoman Liz Bowman told Bloomberg Environment.

Bowman stopped short of saying when, but added, “the Trump administration’s stay of the 2015 WOTUS rule will very likely be complete before any change in court jurisdiction can be finalized, or the Obama administration’s overreaching definition of WOTUS can be implemented.”

She also didn’t explain how much time the Supreme Court gives the litigants to apply the decision. However, Christopher Locke, an attorney with Farella Braun + Martel LLP, told Bloomberg Environment the ruling would apply immediately and wouldn’t require an order from the Sixth Circuit.

Additional Challenges Coming

Meanwhile, some industry groups are gearing up to revive the lawsuits in federal district courts that were either stayed or withdrawn and press for more delays in implementing the rule. Others are debating whether to hold off on lawsuits until the Trump administration completes its rewrite, which is not due until June 2019.

“We are going to ask the court to revive the lawsuit, as I suspect many other plaintiffs are thinking of doing, and we are going to ask for a stay of the rule,” James Burling, vice president of litigation for the California-based Pacific Legal Foundation, told Bloomberg Environment. The foundation simultaneously filed its lawsuit on behalf of property rights and Western cattlemen groups in the U.S. District Court for the Northern District of Minnesota as well as the Sixth Circuit.

Likewise, the Southeastern Legal Foundation, a property rights group, is evaluating whether to revive its currently stayed lawsuit in the federal district court in Atlanta, and whether to seek a stay of the rule there as well.

“We will fight the rule, but we also will seek a stay,” Kimberly Hermann, general counsel for the Atlanta-based foundation, told Bloomberg Environment

High Court Sides With 30 States

The Supreme Court supported the position taken by 30 states and many industry groups that federal district courts are better suited to reviewing such challenges, which have an impact on local waterways, than an appellate court.

“The Government’s policy arguments provide no basis to depart from the statute’s plain language,” the justices said in the 9-0 ruling, written by Justice Sonia Sotomayor.

The decision was welcomed by the industry groups that had argued that the Clean Water Act requires the cases to be heard in district courts rather than appellate courts.

“That makes it much easier for litigants to know where to go with their CWA challenges, which has been a problem for decades,” Timothy Bishop, a Mayer Brown LLP attorney who argued for the industry, told Bloomberg Environment.

Issue Remains Relevant

The issue of which court should review the water rule remains relevant, even as the Obama-era water jurisdiction rule is in the process of being rescinded and replaced by the Trump administration. The Supreme Court’s decision will determine where the inevitable legal challenges to an expected replacement regulation will be heard.

Challenges will resume in district courts across the country, including the federal district court in Bismarck, N.D., which has blocked the rule from taking effect in North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming.

While having a single appellate court hear the challenge would have been more efficient, that wasn’t Congress’s only consideration when it limited federal appellate courts to hearing reviews of specific EPA actions, Sotomayor wrote.

“Had Congress wanted to prioritize efficiency, it could have authorized direct circuit court review of all nationally applicable regulations, as it did under the Clean Air Act,” Sotomayor wrote.

Georgetown’s Babcock said the Supreme Court ignored the practical concerns of its ruling by sticking to a plain reading of the Clean Water Act.

The court didn’t buy the government’s argument that it would be more efficient for a federal appeals court to hear litigation over the Obama-era Clean Water Rule or any subsequent rewrite, dismissing the government’s broad reading of the Clean Water Act.

Sotomayor said the water rule imposes no restrictions, such as permit limits for wastewater releases. Rather, she wrote, “it announces a regulatory definition for a statutory term.”

Nat’l Ass’n of Mfrs. v. Dep’t of Def., 2018 BL 19433, U.S., No. 16-299, 1/22/18.

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