Thursday, January 25, 2018
Robert Parker, Environmental
Despite the recent government shutdown, the U.S. Supreme Court remained in business Monday and issued a unanimous ruling in favor of the National Association of Manufacturers, affirming that challenges to the waters of the United States (WOTUS) rule must be heard in federal district courts. Oral arguments presented in October 2017 in the case National Association of Manufacturers v. Department of Defense framed the debate as to whether the U.S. Court of Appeals for the Sixth Circuit erred when it held that it has jurisdiction under 33 U.S.C. § 1369(b)(1)(F), the portion of the Clean Water Act's (CWA) judicial review provision that requires that agency actions “in issuing or denying any permit” under Section 1342 of the CWA be reviewed by the Court of Appeals. Attorneys for the National Association of Manufacturers and several co-petitioners successfully argued that the WOTUS rule does not “issue or deny any permit” but instead defines the waters that fall within CWA jurisdiction. In the 9-0 ruling, Justice Sonia Sotomayor upheld this view, stating in her 20-page opinion, “Congress made clear [in the Clean Water Act] that rules like the WOTUS Rule must be reviewed first in federal district courts.”
Although the case was focused strictly on procedural matters, and did not address the merits of the WOTUS rule itself, the court’s opinion will have widespread ramifications for the application of federal jurisdiction under the CWA. The WOTUS rule is currently under a preliminary injunction in 13 states, issued by the U.S. District Court, District of North Dakota in State of North Dakota v. U.S. Environmental Protection Agency, et al.This preliminary injunction, albeit impermanent, is likely on solid ground as that case moves forward. This is no longer the status of the nationwide stay on the WOTUS rule issued in 2015 by the U.S. Court of Appeals for the Sixth Circuit in State of Ohio, et al. v. United States Army Corps of Engineers, et al. Because the appeals court no longer has jurisdiction in WOTUS rule cases, it must act to lift the stay, an action that would put the rule into immediate effect in the 37 states (see map) that are not party to the suit in the District of North Dakota; however, new and revived litigation in the district courts would likely involve requests for injunctive relief on either a state-by-state basis or, although contrary to the administration’s position in other issues, a nationwide injunction.
These developments are occurring against the backdrop of the administration’s efforts to stop the WOTUS rule from being implemented. In 2017, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) issued a proposed rule for a two-step process to repeal the WOTUS rule and create new language that would define which water bodies are subject to CWA authority. The administration is currently discussing this new definition with various states and stakeholder groups. Anticipating that the Sixth Circuit nationwide stay could be lifted when the Supreme Court declined to dismiss National Association of Manufacturers v. Department of Defense, the administration issued a second proposed rule in December 2017 that would delay “applicability” of the WOTUS rule until 2020. Neither of the proposed rules have been finalized by the date of this writing, and EPA and USACE have not issued guidance regarding the high court’s decision.
The Supreme Court decision has provided needed certainty in establishing a clear and consistent pathway for litigation over the WOTUS rule. Selection of a forum for legal proceedings is an important consideration when resources are limited; that process will now begin in the U.S. district courts and will move upward to the federal appeals courts when necessary. The ultimate outcome for the WOTUS rule, and the resulting regulatory landscape that businesses must navigate, remains uncertain, however. Olsson Associates will be tracking and researching the dynamic changes occurring with the WOTUS rule and will be working diligently to keep our clients informed with timely and accurate analysis. Please do not hesitate to contact us if you have questions about how your project may be affected in your state.
The U.S. Supreme Court’s opinion in National Association of Manufacturers v. Department of Defense can be read here: https://www.supremecourt.gov/opinions/17pdf/16-299_8nk0.pdf
Please call Robert Parker at 402.458.5080 or email him at firstname.lastname@example.org if you have any questions.
 Joining the State of North Dakota as Plaintiffs in State of North Dakota v. U.S. Environmental Protection Agency, et al. were Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming; New Mexico Environment Department; and New Mexico State Engineer. These states are subject to the U.S. District Court, District of North Dakota injunction (shown in light blue on map; Alaska is not shown).
 Joining the State of Ohio as petitioners in State of Ohio, et al. v. United States Army Corps of Engineers, et al. were Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, and Wisconsin; North Carolina Department of Environment and Natural Resources.