In a unanimous decision on January 22, the U.S. Supreme Court ruled that challenges to the Obama administration’s 2015 Clean Water Rule must be brought in federal district courts rather than directly in the courts of appeals. National Association of Manufacturers v. Department of Defense, No. 16-299 (Jan. 22, 2018). The Supreme Court did not address the merits of the Clean Water Rule. The Supreme Court’s decision likely will prolong the ongoing litigation over the validity of the Rule, as the current administration considers several rulemaking proposals to rescind the Rule and to extend its effective date.
The Clean Water Rule
The Clean Water Act provides federal jurisdiction over “navigable waters,” which the law defines merely as “waters of the United States.” This definition is critically important because it determines which water bodies are subject to the Clean Water Act’s permit programs—including the National Pollutant Discharge Elimination System (NPDES) permit program under Section 402 of the Act, which is administered mostly by the states under the oversight of the U.S. Environmental Protection Agency, and the permit program governing the discharge of dredged and fill materials under Section 404 of the Act, which is administered by the U.S. Army Corps of Engineers. The absence of a clear definition has bedeviled the courts, state and federal regulators, and the regulated community for years. In 2015, in an attempt to clarify the scope of Clean Water Act jurisdiction, EPA and the Corps jointly published the Clean Water Rule.
Litigation Challenging the Clean Water Rule
Thirty-one states and numerous environmental and industry groups challenged the validity of the Clean Water Rule in various district and appellate courts, with uncertainty over which courts had jurisdiction to hear the challenges.
Two district courts concluded that they lacked jurisdiction to hear challenges to the Clean Water Rule and dismissed the cases, while the U.S. District Court for the District of North Dakota issued a preliminary injunction that enjoined the Rule from taking effect in 13 states. Murray Energy Corp. v. EPA, No. 1:15-cv-110, 2015 WL 5062506 (N.D. W. Va. Aug. 26, 2015); Georgia v. McCarthy, No. CV-215-79, 2015 WL 5092568 (S.D. Ga. Aug. 27, 2015); North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015). The Judicial Panel on Multidistrict Litigation denied the agencies’ request to consolidate the multiple district court cases. In re Clean Water Rule, 140 F. Supp. 3d 1340 (J.P.M.L. 2015).
Meanwhile, cases filed in the federal courts of appeals were consolidated in the U.S. Court of Appeals for the Sixth Circuit. On October 9, 2015, the Sixth Circuit issued a nationwide stay of the Clean Water Rule pending judicial review. In re EPA and Dep’t of Def. Final Rule, 803 F.3d 804. On February 22, 2016, the Sixth...
