Water rule suits should begin in trial courts

Erika Holt
January 23, 2018

In an important procedural decision, a unanimous United States Supreme Court ruled that challenges to the 2015 Obama-era rule re-defining Waters of the United States (WOTUS) under the Clean Water Act were properly before federal district courts and not federal courts of appeal.

In February 2016 the US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] that it, and not lower federal district courts, has the authority to be the first court to hear the lawsuits form industry groups.

"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", EPA spokesperson Liz Bowman said in a statement. This ruling overturned a previous decision by the Sixth Circuit Court of Appeals that found it had jurisdiction to hear the challenge and further to consolidate challenges from across the country before it. The Supreme Court agreed to resolve the turf fight.

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

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"While today's decision may extend the timeline for litigation over the rule, the good news is that it should put the Clean Water Rule back into effect widely, ensuring clear and strong protections for our nation's waters".

Opponents of an Obama administration rule aimed at protecting small streams and wetlands from development and pollution now know which courts should be hearing their lawsuits. Justices rebuffed arguments by the administration that a federal appeals court should instead hear the litigation.

The Trump administration, which is working to repeal and replace the rule with a version that would cover fewer bodies of water, argued that challenges fell within the purview of appeals courts because the rule established the boundaries of the Clean Water Act's ban on pollutant discharges and EPA's permitting authority. Because the dispute over which court has jurisdiction has consumed almost two years, Attorney General Stenehjem emphasized that he will ask the federal district court to resume North Dakota's case as quickly as possible.

The Supreme Court reversed the judgment of the appeals court and remanded the case with instructions to dismiss the petitions for review for lack of jurisdiction. Rather, she wrote, "it announces a regulatory definition for a statutory term".

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