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The Insider

Water Cases Top Supreme Court's Environmental Docket For 2017-18 Term

Major Clean Water Act (CWA) cases are topping the Supreme Court's environmental docket for the 2017-18 term that starts next month, including long-awaited oral argument in the suit over the Obama administration's CWA jurisdiction rule and a battle over water “transfers.”

Just days into the new term, on Oct. 11, the high court will hear oral argument in the challenge to the 2015 CWA jurisdiction rule, National Association of Manufacturers (NAM) v. Department of Defense, et al. However, the case before the justices has no bearing on whether the rule itself is lawful. Instead, it deals with whether the suits filed against the Obama-era rule should have been brought in district or appellate courts.

The CWA singles out certain categories of rulemakings for appellate review, but it is unclear whether a jurisdiction rule falls under that umbrella. The Obama administration insisted circuit courts were the proper venue, while industry, states and most environmental groups favored district court review, fostering massive uncertainty on where suits should actually be filed.

Ultimately, challengers filed cases in both district and appellate court, with over a dozen proceeding in parallel at the busiest point, until the U.S. Court of Appeals for the 6th Circuit decided that it had authority over the rule. That led district courts to either dismiss challenges pending there or suspend them indefinitely.

But many of the challengers are now calling for the Supreme Court to overturn the 6th Circuit's decision and send review of the rule -- and future actions affecting CWA jurisdiction -- to district courts. They say that the appellate judges' ruling sets such a nebulous standard for when a rule qualifies for circuit review that it will create more “chaos” as challengers to other rules scramble to file at both levels:

CWA Rule Challengers Warn Of 'Chaos' If High Court Backs Appellate Suits
Environmentalists, several states and groups representing major industries are warning of litigation “chaos” if the Supreme Court backs the government's push for appellate review of EPA's 2015 Clean Water Act (CWA) jurisdiction rule, saying it would create permanent confusion over the correct venue for suits over CWA policies.

Meanwhile, the Trump administration has maintained its predecessor's arguments that the breadth of CWA jurisdiction should be litigated in circuit court. That position breaks with EPA Administrator Scott Pruitt's stance when he was Oklahoma's attorney general and a leading challenger to the 2015 rule, saying district court was the correct venue:

Trump DOJ Maintains Obama-Era Push For Appellate Review Of CWA Rule
The Trump administration in an ongoing Supreme Court case is backing an Obama-era position that suits over EPA's 2015 Clean Water Act (CWA) jurisdiction rule and expected litigation over a pending replacement rule should be heard in appellate courts, at odds with agency Administrator Scott Pruitt's past support for hearing such suits in district courts.

EPA and the Corps are likely to finalize their withdrawal of the 2015 rule before the high court can decide NAM, meaning litigation over the Obama-era policy's merits would halt. But how the justices decide would determine which courts hear challenges to the repeal rule, and to the replacement that the administration is already crafting.

While NAM is the only water case currently up for argument before the high court in 2017, there are pending petitions for certiorari in two long-running CWA suits that could attract the justices' attention this term.

First, states and environmentalists have a newly-filed petition asking the court to overturn EPA's 2008 rule that exempts transfers of water between two waterbodies -- such as moving water from one river to another in order to combat drought conditions -- after the 2nd Circuit upheld it:

States, Environmentalists Seek High Court Review Of Water Transfer Suit
Environmentalists and seven states are asking the Supreme Court to take up their challenge to EPA's Clean Water Act (CWA) rule that exempts water transfers from permit requirements, saying an appellate court's decision to uphold the Bush-era rule contradicts the law's plain text and breaks with the justices' past rulings.

Industry and Western states have warned that a permit mandate for transfers would be onerous and potentially crippling for their water management practices, but challengers -- including tribes as well as environmentalists and other states -- say the program could be easily administered with general permits that ensure safeguards are in place.

Meanwhile, a group of wastewater authorities and municipal governments is hoping the Supreme Court will take up their suit over EPA's implementation of an 8th Circuit ruling that said the agency lacks authority to restrict “blending” of fully and partially treated wastewater through CWA permits.

EPA is only following the decision within the seven states of the 8th Circuit, and making “case by case” decisions on how to proceed elsewhere, which the petitioners in Center for Regulatory Reasonableness v. EPA say is unlawful. And they are invoking the NAM suit as a reason to take up their case, since the District of Columbia Circuit rejected it in part because of a dispute on whether EPA's statements on blending policy qualify for appellate review:

Wastewater Group Cites CWA Rule In Supreme Court Appeal On 'Blending'
A group of municipalities and wastewater authorities is urging the Supreme Court to hear their appeal of a ruling backing EPA's Clean Water Act (CWA) wastewater “blending” policy, saying the high court's decision to hear a separate case on the correct venue for suits over the 2015 CWA jurisdiction rule means it must also take the group's case.

Inside EPA will have exclusive coverage of new developments before the high court, including argument in NAM.