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The veteran environmental attorney who first got the U.S. Supreme Court to question the reach of the nation’s water quality law is returning to the court to pick up where he left off.
Timothy S. Bishop, a partner with Mayer Brown LLP, has argued five cases before the nation’s highest court and will notch his sixth Oct. 11 as he tries to convince the justices that a federal district court rather than an appeals court should hear challenges to an Obama-era rule, or its impending replacement, that clarifies the reach of the Clean Water Act.
The Clean Water Rule (also called the waters of the U.S. rule) is opposed by the National Association of Manufacturers and 30 states that say it goes too far.
Since the Clean Water Rule was released in 2015, Bishop told Bloomberg BNA, armies of lawyers for states, industries, and environmental groups have spent two years and millions of dollars “litigating to find out where they can litigate.”
It’s a big issue because the Clean Water Act is not clear about which court has jurisdiction. The federal government wants it argued in the appeals court in part to save money and time; most industry groups and some environmental groups prefer the district courts, where they have more time to file challenges and perhaps could prevail with more localized arguments.
Bishop has spent much of his career arguing against expanding the reach of the Clean Water Act, beginning with a 2000 Supreme Court case that “really began the tide of uncertainty over Clean Water Act jurisdiction,” Steven Miano, an attorney with Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, told Bloomberg BNA.
Before Solid Waste Agency of N. Cook Cnty. (SWANCC) v. United States was decided in 2001, “most practitioners thought they understood the breadth of its jurisdiction,” Miano said.
In that case, Bishop tasted his first Supreme Court victory when the justices put the brakes on the federal government’s desire to expand Clean Water Act jurisdiction to isolated wetlands based on the presence of migratory bird.
Since that decision, the Supreme Court has muddied the waters further with its 2006 split ruling in Rapanos v. United States, which didn’t provide clarity about what wetlands and small tributaries are protected.
The Environmental Protection Agency and the U.S. Army Corps of Engineers after Rapanos wrote a rule that sought to delineate these waters, but those efforts were greeted with litigation.
“Tim is a natural fit” whenever a case needs to be argued at the highest level, Ellen Steen, the American Farm Bureau Federation’s general counsel, told Bloomberg BNA.
Bishop is no stranger to the Supreme Court workings. He started out clerking for the late Judge James Oakes for the U.S. Court of Appeals for the Second Circuit during the 1986-87 session. He followed up this stint with a clerkship with the late Justice William Brennan during the Supreme Court’s 1988-89 session.
Bishop later served as staff counsel for the American Civil Liberties Union. The perception about whether any environmental advocates view him as an anti-environmental lawyer, given his past experience, doesn’t faze him.
“Challenging unclear, overbroad regulations that impose massive costs on society without concomitant benefits isn’t a liberal or conservative position,” Bishop said.
Bishop said his clerkship with Brennan helped him immensely in his career as a Supreme Court advocate.
The clerks read hundreds of briefs that gave them a good idea of what worked with the justices. Brennan was very focused on the question presented in the petitions to the Supreme Court.
“That is something I took to heart and now I spend a lot of time on the question,” Bishop said.
Attorneys said that Bishop has a penchant for writing Supreme Court petitions that get noticed and picked up. Bishop also has offered advice on presenting oral arguments, advising lawyers to “go for the jugular” after the first two opening sentences.
Bishop also has coauthored the 10th edition of “Supreme Court Practice” and contributed to the second edition of “Federal Appellate Practice” with other Mayer Brown lawyers. Bloomberg BNA published both books in 2013.
Several other lawyers and environmental advocates who have crossed paths with Bishop in prior cases declined to comment, but Steen said he has a knack for picking cases that have far-reaching impacts.
“He understands the 30,000-foot picture as well as understands the nitty-gritty details of the rule being challenged as well as the statutory scheme of the rule in question,” Michael Kimberly, also of Mayer Brown, told Bloomberg BNA.
The Farm Bureau hired Bishop to challenge the reach of EPA’s water activities, including a failed challenge to a 2010 plan to clean up the Chesapeake Bay.
“I personally think of him when I think of very high stakes appellate litigation, particularly when I think of the Clean Water Act,” Steen said.
Bishop said he tries to look at cases “from the regulated person’s perspective.” It’s critical because violating environmental laws, such as the Clean Water Act, can result in penalties that are huge and may lead to jail time.
The challenge to the Clean Water Rule will let Bishop strike familiar themes. An analysis of his court cases shows that he has not shied away from taking on the EPA where its actions appeared to be at odds with the plain language of the Clean Water Act.
Bishop will open the Oct. 11 arguments for the manufacturers while Ohio state solicitor Eric Murphy will represent states’ views as they argue that the Clean Water Act stipulates very specific issues—such as discharge permits or wastewater effluent limits—be heard by an appellate court.
The Mayer Brown attorney’s task in Nat’l Ass’n of Mfrs v. DOD will be to persuade the nine justices that a plain reading of the Clean Water Act makes it clear that a review of the water jurisdiction rule is not covered by the Clean Water Act, but rather by the Administrative Procedure Act that governs final agency actions.
That may be an easier legal lift than the government’s task of persuading textualists on the court, notably Justices Neil Gorsuch and Clarence Thomas, to ignore the plain language of the Clean Water act and “improve” the statute through a creative interpretation, according to Vermont Law School Professor Patrick Parenteau.
The government will argue that it is “inconsistent” to have a federal appeals court review individual permit decisions, but leave a federal district court to rule on more fundamental issues such as which waters fall under federal jurisdiction.
“It’s a straightforward argument, but you can never be sure what happens during oral argument,” Parenteau told Bloomberg BNA. “It’s the most free-wheeling—some would say undisciplined—process imaginable.”
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