The Supreme Court issued a unanimous decision yesterday that challenges to EPA’s Clean Water Rule (CWR) were properly brought before federal District Courts, and not federal appellate courts. The decision is not about the validity of EPA’s definition of “waters of the United State,” but instead involves the procedural issue as to where challenges to EPA’s rule must be filed.  The decision is important, nonetheless, because it invalidates an appellate court decision that had prevented the CWR from taking affect across the Nation.

The issue before the court was which federal courts could review challenges to the 2015 CWR, which defined “waters of the United States” under the Clean Water Act.  After EPA promulgated the rule, numerous lawsuits were filed challenging the CWR in both federal district courts and federal courts of appeal or so-called circuit courts. In one of those cases, the United States Court of Appeals for the 6th Circuit issued a nationwide stay that prevented the CWR from taking effect. 

The government argued that the 6th Circuit had jurisdiction to issue its decision.  Typically, challenges to EPA rules must be filed with a district court and not an appellate court like the 6th Circuit.  However, the Clean Water Act provides seven categories of EPA actions that can be challenged in circuit courts.  The government argued that this was one of those types of actions that could, and should, be challenged in circuit courts.  

The US Supreme Court rejected all of the government’s legal and policy arguments.  The Court held that the CWR is “a definitional rule that clarifies the scope of the statutory term” and while litigating before the district courts may be less efficient and may result in a less uniform regulatory landscape, the plain language of the Clean Water Act shows that Congress made clear that rules like the CWR must be reviewed first by the federal district courts. 

The Supreme Court’s decision will impact the nationwide stay of the CWR imposed by the 6th Circuit Court of Appeals.  Once the 6th Circuit dismisses the case, as directed by the Supreme Court, the CWR will be reinstated in all states – including Pennsylvania – except in those 13 western states for which the District Court of North Dakota issued a stay on the CWR in 2015.  

Under the CWR, EPA defined “waters of the United States” in a manner that clarified that protections under Clean Water Act covered small intermittent and ephemeral streams and wetlands. These waters are critical not only in their own right, but also for the water quality of the larger bodies of water of which these smaller streams are a part. 

This decision will also impact the Trump Administration’s 2017 attempts to repeal the CWR.  The government sought to preserve the circuit court’s jurisdiction over the CWR because they are generally viewed as being less inclined to overturn federal agency rules, which might have made it harder for environmental groups to challenge Trump’s effort to repeal and replace the existing CWR.  

PennFuture is engaged in the battle over the Clean Water Rule.  Last year, we submitted comments against the initial proposed repeal  of the CWR and a secondary attempt  by EPA at gutting the CWR.  PennFuture will continue to be engaged over the coming year to help ensure that our waters remain protected.