Environmental -- 2018

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

On January 22, 2018, the United States Supreme Court reversed 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 argued that they do not include the NAM’s 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 Supreme Court to review a decision from the U.S. Court of Appeals for the Sixth Circuit, where many suits challenging the WOTUS rule had been consolidated. The Sixth Circuit had previously ruled that the various challenges to the WOTUS rule belonged in the Sixth Circuit rather than the district courts. The Sixth Circuit was divided in its reasoning for that conclusion, however, and its holding conflicts with similar cases decided by other appellate courts.

In our briefs before the Supreme Court, we explained why legal challenges such as this belong in the federal district courts. The Sixth Circuit's decision put challengers to the WOTUS 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 of 2017, the agencies asked the Supreme Court to hold briefing in abeyance pending the agencies’ reconsideration of the WOTUS rule, but the Court declined. We therefore filed our opening brief on the merits on April 27, 2017, and gave oral argument on 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.

On January 22, 2018, the Supreme Court issued a unanimous decision holding that the Sixth Circuit lacked jurisdiction to hear the various challenges to the WOTUS rule and that jurisdiction properly belongs in the federal district courts. The Court concluded that the plain text of the Clean Water Act supports jurisdiction in the district courts. This ruling will provide needed clarity on where legal challenges to future WOTUS rulemakings (and other rulemakings arising under the Clean Water Act) should proceed, saving manufacturers significant uncertainty, delay, and expense.

Related Documents:
NAM press release  (January 22, 2018)
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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