Swamp Stomp
Volume 18, Issue 5
On Monday, January 22, 2018, the US Supreme Court in a unanimous decision ruled that the U.S. Environmental Protection Agency cannot shelter its “waters of the United States” rule from judicial review by limiting where victims can sue. This decision is in response to the Sixth Circuit Court of Appeals nationwide stay of the Clean Water Rule in October 2015. Oddly enough it is considered a victory for both the Plaintiff (National Association of Manufacturers) and a repudiation of the Trump Administration plan to repeal the Rule. The other odd thing about this ruling is that it exclusively directs its admonition to the US Environmental Protection Agency when the defendant was the US Department of Defense.
In case you have not been following this issue, what is at stake is what waterbodies are regulated by the US Government under the Clean Water Act.
This ruling is important because it does two important things. First, by having the challenges to the rule reviewed at the District Court level it expands the timeframe in which plaintiffs can bring challenges to six years. If the decision were to have left it at the Appeals Court as EPA had argued, those challenges would be limited to 120 days. In essence, if someone is aggrieved by the issuance of the Rule they now have six years to file a lawsuit. Not only that, it can be filed at the lower District Court level. There are 94 Districts Courts in the US and only 11 Circuit Courts of Appeals. The EPA had argued that the Circuit Court venue was more efficient, but the Supreme Court did not feel that “Congress did not pursue that end at all costs” in its drafting of the Clean Water Act.
The second issue that comes up as a result of the case relates to the Nationwide Stay of the implementation of the Clean Water Rule. That Stay came from the Sixth Court of Appeals. The Supreme Court ruled that that Court did not have jurisdiction. Therefore, the Stay will be lifted, thus implementing the Clean Water Rule. This is seen by many media sources as a setback to the Trump Administration’s attempt to repeal the rule. However, if it had gone the other way it would be up to the Sixth Circuit to lift the Stay anyway and make a decision. As it is not their jurisdiction, the decision goes back to the District Courts.
By the way, the U.S. District Court for the District of North Dakota also has a 13 state stay on the Clean Water Rule. This was in effect the day before the Rule went into effect on August 28, 2015. When the Sixth Circuit Court Stay is lifted it will only pertain to 37 states. It is not known what the ND Court will do.
In November 2017, the Trump Administration put forth a 2-year delay proposal on the implementation of the Clean Water Rule as a new regulation. This is yet another draft regulation that we may or may not see. However, if it is not implemented the 2015 Clean Water Rule will become effective the day the Sixth Circuit Court removes the Stay.
Looking forward, the Trump Administration has been meeting with stakeholder groups to formulate a new Waters of the US definition. In light of last Monday’s Supreme Court decision, I think we can expect to see this regulation fairly soon.