We have strange bedfellows, as business groups, states and environmentalists maneuver before the Supreme Court over the Obama Administration regulation defining "waters of the US" ("WOTUS") under the Clean Water Act (CWA). Organizations supporting and opposing the rule all argue that the Court should overrule the decision of the 6th Circuit Court of Appeals holding that the legitimacy of the WOTUS regulation must be decided by an appellate court under the terms of the CWA.

What It Means

The Obama WOTUS regulation was intended to resolve a conflict set up by the Supreme Court several years ago, when it split 4-1-4 (conservative, Kennedy, liberal) in a case involving a jurisdictional wetland issue. In enforcement action subsequent to that decision, the Department of Justice requested that district courts apply a WOTUS definition aligned with the Kennedy and liberal bloc approaches. Ultimately, the Obama Administration issued a regulation that adopted that general approach, over the opposition of business, farming and red state groups. Following adoption of the regulation, there was a flurry of litigation in both district and appellate courts, with fierce arguments not so much over the substance of the challenge, but a procedural dispute over which level of court had jurisdiction under the CWA.

The 6th Circuit finally held that the CWA required that jurisdiction over the WOTUS rule was in the appellate courts. The Supreme Court then accepted certiorari on that procedural issue, with business, state, and environmental groups all supporting the position that the 6th Circuit had erred. It is not often we find those groups aligned before the Supreme Court on an environmental issue. However, in this case, the alignment may reflect how those groups see the future, as much as it does their interpretation of the language of the CWA.

From one perspective, it is better that regulatory issues of national scope are before a three judge appellate panel, rather than a single federal judge. Analysis by three appellate judges will be more thorough-going, and the road to the Supreme Court more swift. On the other hand, even national regulatory issues might benefit from consideration of a variety of local concerns. And, not to be too cynical, jurisdiction in district courts provides great opportunities for forum shopping.

The situation is complicated by the fact that EPA, under the Trump administration, announced it is commencing a two-step process to unwind the WOTUS rule. The first step rescinds the rule and public comments on that are due September 27. At the same time, EPA announced that it will develop a new substantive WOTUS jurisdictional rule. We expect multiple challenges to both steps of the rulemaking, making the challenge to the 6th Circuit’s procedural ruling still central to the discussion. In the meantime, EPA and the Corps of Engineers are supposed to carry on under the definition in place in the mid-1980’s and a guidance issued in 2008.

In this muddled context, parties with disparate interests in the ultimate outcome appear to see common interests in the forum issue. The business and red state opponents of the current regulation certainly do not want a decision by the Sixth Circuit upholding the regulation, and would like to have multiple opportunities to obtain district court rulings that the regulation is unconstitutional or otherwise an abuse of discretion. Assertion of federal wetlands jurisdiction around the country would remain in constant flux while the Trump Administration undertakes the lengthy effort to replace it. In addition, the ability to cite a variety of judicial views on the existing regulation may make it easier for the Trump Administration to defend its revised definition as equally reasonable.

From the environmentalist viewpoint, a Supreme Court decision giving them the opportunity to create similar litigation havoc with the Administration’s new rule must seem very inviting, particularly if the attraction of appellate review changes as Trump fills appellate court vacancies and shifts the ideological balance within the circuits.

You may note the absence of any analysis of the merits in this discussion. It was deliberate.