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Jan 27 2017

U.S. Supreme Court to Decide Which Court Should First Consider Challenges to Clean Water Regulations

January 27, 2017 (Houston)

James SmithBy James Smith – “Environmental Alert” (Schirrmeister, Diaz-Arrastia, Brem LLP)

The U.S. Supreme Court will answer a question that has perplexed many judges and lawyers.  In which court should challenges to the EPA’s Clean Water Act regulations be filed?

Which Court Should First Review the EPA Regulations?

When the EPA issues a new rule, persons affected by it know they can challenge the EPA’s action in court.  But they do not always know in which court to file, that is, which court should first hear the challenge.

The U.S. Supreme Court has agreed to hear an appeal from In Re: U.S. Dep’t of Defense and U.S. Envtl. Protection Agency Final Rule: Clean Water Rule, a decision of the 6th Circuit Court of Appeals addressing which court should first review EPA regulations.  Interestingly, the case is industry’s challenge to the EPA’s definition of “waters of the United States” (the “WOTUS rule”).

Three Judges, Three Different Analyses

To review the WOTUS rule, the 6th Circuit first had to determine if an appeals court, rather than a trial level (district) court should be first to hear the case.  The 6th Circuit’s opinion is an indicator of the issue’s difficulty.  As is customary, a panel of three 6th Circuit judges heard the case.  Of the three, only one judge ruled, without reservation, that a court of appeals is the appropriate court to first review the WOTUS rule.  Another judge agreed that the court of appeals is appropriate, but only because of a 2009 6th Circuit opinion that this judge thought was wrongly decided, but unfortunately binding.

The third judge disagreed with the other two.  In a dissenting opinion, this judge argued that no court of appeals should be the first to review; rather, trial courts should first review the rule, with appellate courts only hearing appeals from the trial courts.

U.S. Supreme Court Will Say Where Challenges Should Be Filed

The U.S. Supreme Court will determine the proper court; the Court will not address the substance of the WOTUS rule.

Addressing the substance of the WOTUS rule would probably be a waste of time, anyway, as the Trump/Pruitt EPA will almost certainly find a way to withdraw or amend the current WOTUS rule, and replace it with something more acceptable to industry and developers.  The U.S. Supreme Court decision will clarify where the challenges to the next version of the WOTUS rule should be filed, with those challenges likely coming from environmental groups.

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