In May 2015, the Obama EPA and Army Corp of Engineers issued a revised definition of “waters of the US.” That language has been discussed in this column on several occasions. Words, however, are rarely the culprit. That usually falls to aggressive interpretation and poor discretion by the enforcers of the rule. For instance, the EPA unsuccessfully attempted to regulate rain drops and puddles on a chicken farm as “waters of the US.” Ridiculous.
The revised definition was widely criticized by farmers, builders and industry claiming the rule impermissibly allowed the EPA to regulate private land. The Trump Administration verbally opposed the definition, promising to repeal and replace it with a much narrower definition. As of Jan. 22, 2018, no action had been taken although an Executive Order was signed encouraging rule revision. Ever hear that not deciding is deciding?
On that date, January 22, 2018, the US Supreme Court UNANIMOUSLY decided an important procedural issue in National Association of Manufacturers v. Department of Defense. Which court hears challenges to the meaning of “waters of the US”? All justices agreed that issues around the contentious waters of the US rule should be heard in federal district courts rather that appellate courts, even though it was not the most efficient use of judicial resources. Let that sink in. When is the last time all nine of the justices on the U.S. Supreme Court agreed about anything other than lunchtime? And why does this matter?
Moreover, both the Trump and Obama Administrations had argued that Clean Water Act issues should be interpreted functionally rather than literally. Both strenuously advocated for hearings in appellate courts, not the district courts. When did the Trump and Obama Administrations ever agree on anything? Ever hear the old saying that politics makes for strange bedfellows?
Justice Sonia Sotomayor wrote the opinion for the court and held that the text of the Clean Water Act trumps all of the government’s arguments in the long-running fight over which courts have jurisdiction over the Obama Administration contentious waters of the US rule. And district courts are the proper place.
The choice of court — district not appellate — is significant because it affects the resources needed to litigate the merits of challenges, sets the Statute of Limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings. District courts are also more tilted toward overturning government actions. Use of district courts will likely make litigation and suits challenging Clean Water Act regulations less orderly, as this option enables the practice of forum shopping (opting to file suit in a favorable district), as well as the possibility of conflicting rulings from district courts.
The decision is especially relevant as the Sixth Circuit of Appeals had a stay/hold on implementing the Obama era definition of “waters of the US.” Enacted in 1948, but as amended in 1972, the Clean Water Act established a basic structure for regulating pollutant discharges into the waters of the U.S. The legislation gave the EPA the authority to implement pollution control programs such as setting wastewater standards for industry and regulating concentrated animal feeding operations.
Since 1972, there has been much litigation about specifics of the Clean Water Act, some of it reaching the highest court. Most recently, in 2015, the revised definition of “waters of the US” had enraged many. The Obama administration sought to create a straightforward meaning, but critics felt it went too far and argued it was over-reaching.
In the short time since the Supreme Court decision of Jan. 22, 2018, much has happened. The floodgates have opened, and many suits have already been filed in district courts all over the country.
Ten days after the Supreme Court’s unanimous decision, the EPA issued the following statement. “The 2015 WOTUS” rule developed by the Obama Administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”
Stay tuned for how the EPA’s position impacts the pending litigation in district courts. There is no clear answer at the present time. At least we know where the question is to be heard — in any federal district court in the country — thanks to the recent unanimous Supreme Court decision. And different districts may reach different conclusions. This could get interesting. At least while the EPA and the Army Corp of Engineers are arguing about language they are not policing puddles.