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Oklahoma and a coalition of business groups sued to challenge the EPA's 2015 rule governing jurisdictional "Waters of the United States" under the Clean Water Act. The rule adversely impacts manufacturers by asserting federal jurisdiction and permitting requirements over millions of acres of dry land throughout the country and by imposing unclear rules on land development. Oklahoma sought a preliminary injunction to stop the rule. A district court denied that injunction, and Oklahoma appealed. In support of their appeal, the NAM filed a coalition amicus brief that explains the impact of the rule on manufacturers and other sectors of the economy and supports an injunction in Oklahoma.

The NAM filed an amicus brief in support of Naifeh’s claim that Oklahoma Senate Bill 845 is a tax rather than a fee and must therefore be enacted following the mandated procedures. Naifeh alleges that SB 845 was intended to raise revenue; therefore, as the bill levied a tax and not a fee, SB 845’s passage did not comply with the mandated procedures. Manufacturers should not be unfairly targeted by onerous taxes imposed by states in an attempt to balance the state’s budget for the next fiscal year. The NAM’s brief argues that the fee, imposed on each pack of cigarettes, is actually a tax and as such required approval by a three quarters supermajority of the legislature prior to implementation. The court agreed with NAM’s arguments and held that as the primary purpose of the fee was to raise revenue, it must therefore be enacted following the tax-enactment procedures mandated by the Oklahoma Constitution.

The NAM and other groups asked the Supreme Court to review a lower court decision that allows the EPA to take over 14 state enforcement plans under the Clean Air Act with respect to regional haze, and impose Federal Implementation Plans (FIPs). Oklahoma and North Dakota objected to this EPA action, saying that the agency overstepped its statutory authority and the result will be billions of dollars in power plant upgrades that will needlessly boost electric rates by as much as 20 percent.

Our amicus brief supports review, focusing on the fact that the Clean Air Act limits EPA's authority with respect to state implementation plans, instead giving the states primary responsibility for making air quality decisions and limiting EPA's role to the secondary function of determining whether those state plans are "based on a reasoned analysis." This is particularly important regarding state regional haze decisions, which involve aesthetic concerns such as visibility in parks. EPA wanted to impose a control technology that is too costly, and conducted a visibility analysis differently. However, Congress gave the states significant latitute by allowing them to choose the mix of sources that must install controls to attain the national standards.

This litigation reflects a growing pattern of disregard by EPA for the statutory limits on its authority, undermining the balance in the Clean Air Act between federal and state enforcement. Allowing this will only make matters worse -- empowering EPA to take unilateral action without engaging with states to help craft workable standards.

On May 27, 2014, the Court declined to hear this appeal.