Case No. 16-299 | 6th Cir. Decision
During the Obama administration, the Environmental Protection Agency (“EPA”) issued a rulemaking, called the Clean Water Rule, that defined a “water of the United States.” Under this rule, the EPA and the Army Corps of Engineers would be able to assert jurisdiction over many types of waterways throughout the United States. Industry groups challenged the definition, arguing that the EPA and the Army Corps over-asserted the authority given to them by Congress in the Clean Water Act. The Trump administration has been very vocal about its intent to withdraw the rule, but the Supreme Court decided not to stay the case pending agency action. Instead, the Court will decide which court should hear the first round of arguments: federal appellate court or federal district court?
There is currently confusion surrounding judicial review for Clean Water Act cases. Parties challenging rules under the Clean Water Act essentially have to engage in protective filing where they file both in federal district and federal appellate courts. The National Association of Manufacturers (“NAM”), a manufacturing association that is often a party in environmental suits, argues that the lower federal district courts have jurisdiction to hear the case. In contrast, the Sixth Circuit claimed jurisdiction based on a section in the Clean Water Act: 33 U.S.C. § 1369(b)(1). This section allows circuit courts to directly review Clean Water Act suits first in a number of instances. For the purposes of this case, the court focused on two: that the rule is on a limit on pollution discharge—called an effluent limitation—or the rule is on a federal permit decision. The question here is whether the Clean Water Rule falls into either of these categories, thus giving the Sixth Circuit direct judicial review rather than the lower federal district court.
NAM uses a “plain language” argument to show that the rule does not fit into § 1369(b)(1)(E) or (F) because it is a definition that doesn’t actually limit any action. They argue that the rule does not contain any pollutant limitations and is not a decision on a federal permit, but is just a definition of what waters are subject to rulemaking on a pollutant or permit. Further, NAM argues that, by enumerating only a handful of factors for direct appellate review, Congress clearly wanted to limit appellate review of Clean Water Act challenges. NAM suggests that allowing a national rule like this to be directly reviewed by the appellate court would improperly expand the scope of the enumerated factors farther than Congress ever intended.
In opposition, the agencies argue that the Clean Water Rule fits under § 1369(b)(1)(E) because it functionally places a limitation of pollutant discharge. The rule is meant to define waters over which the EPA and the Army Corps will have jurisdiction for the purposes of limiting pollutants in our waterways. Further, the agencies argue that it fits under § 1369(b)(1)(F) not because it is a decision on a federal permit, but because it defines what waters fall under permitting requirements in the first place. The agencies argue that if the Clean Water Rule were to be heard in the lower district courts first, but decisions on federal permits were directly reviewable by appellate courts, a “bifurcated” regulatory scheme would result. The Supreme Court has previously ruled that such bifurcated schemes, where the underlying rule is reviewed by a district court, but decisions on the underlying rule go directly to an appellate court, are frowned upon. The agencies argue that this case should be no different.
Should the Court agree with NAM, parties wishing to challenge Clean Water Act rulemakings not fitting within the enumerated factors will have the benefit of a less-strict timeline under which to file their actions. With direct appellate review, parties must file within 120 days of the issuance of the rulemaking. Additionally, when national rule cases are filed in several different circuits, they are randomly consolidated into one circuit. Filing in federal district court will give parties more control over the forum in which they file because the same consolidation procedure does not apply. On the agency side, direct appellate review is a more efficient use of agency resources because of the consolidation process and overall appellate procedures and briefing timelines. Whatever the Court decides, it will be a welcome relief to settle at least one longstanding source of confusion under the Clean Water Act.