Environmental -- active

National Association of Manufacturers v. U.S. Dep't of Defense   (U.S. Supreme Court)

Appeal of Waters of the United States (WOTUS) jurisdictional issue

The Supreme Court has agreed to review a splintered federal appeals court decision concerning where the NAM's lawsuit against the Environmental Protection Agency and the U.S. Army Corps of Engineers should be heard. Federal law specifies that, while most lawsuits are filed in trial courts, a few types of suits must be filed directly in the federal courts of appeals. Those few types are limited in scope, and we believe they do not include our challenge to the agencies' new rule defining how far their authority goes in regulating the "waters of the United States" (WOTUS).

Our petition asked the Court to review a decision from the U.S. Court of Appeals for the Sixth Circuit, where many suits challenging the WOTUS rule have been consolidated. The appeals court judges who are currently considering our challenge to the WOTUS rule issued three separate opinions on the court's jurisdiction. One judge refused to read the Clean Water Act literally, allowing the case to be heard. Another judge begrudgingly allowed the suit in the court of appeals even though he disagreed with the judicial precedent that he felt controlled the outcome. A third judge dissented, saying the case should go to the district court first.

The panel's decision conflicts with decisions in similar cases by other federal appeals courts. The NAM outlined in detail why 33 U.S.C. Sec. 1369(b) does not allow courts of appeals to hear this challenge. The Sixth Circuit's decision puts challengers to the EPA rule in an untenable position -- if that court does not actually have jurisdiction to hear the case, any action it takes could thereafter be overturned on appeal, without even considering the merits of the challenge, and we would have to start the case over at the trial court level. This is a tremendous waste of resources for manufacturers and other parties affected by the rule, the Administration, and the courts. Delaying review of the jurisdictional question, which must ultimately be resolved in any case, makes no sense.

In March, the Trump Administration asked the Court to hold briefing in abeyance pending reconsideration of the waters rule by the Government, but the Court declined. We therefore filed our opening brief on the merits on April 27, and oral argument has been scheduled for October 11. Our merits brief argued that the Sixth Circuit did not have statutory authority to review the rule under a statutory provision that applies only when an agency "issues or denies" a permit, which it has not done. The court also did not have judicial authority because the rule is not a "limitation" under a separate statutory provision, since it does not by its terms limit any action. Legislative history and policy considerations also bolster these text-based conclusions.

On September 11, 2017, we filed our reply brief arguing that the plain statutory language support district court jurisdiction, and policy considerations favor interpreting the statute according to its textual language. Oral arguments in the case were held on Oct. 11, 2017. A decision is expected early in 2018.

Related Documents:
NAM merits reply brief  (September 11, 2017)
NAM merits brief  (April 27, 2017)
NAM reply brief  (December 20, 2016)
NAM petition  (September 2, 2016)


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