We are one step closer to the Supreme Court deciding the ultimate question regarding the “Waters of the United States” (WOTUS) regulations, which is, of course: are they lawful? For now, the Supreme Court has agreed to decide if federal courts of appeals or, instead, federal district courts (lower courts) have the authority to answer this question.
Numerous states and local governments have challenged the WOTUS regulations. In National Association of Manufacturers v. Department of Defense, the Supreme Court will not rule whether the regulations are lawful. Instead, they will simply decide which court gets to take the first crack at deciding whether they are lawful.
The regulations define the term “waters of the United States” as used in the Clean Water Act. The definition of this term determines the scope of federal authority to regulate water as well as when states, local governments and others must seek federal permits to develop land because it contains WOTUS. States and local governments object to numerous aspects of the definition as too broad.
Most federal legal challenges begin in federal district courts, the decisions of which are then reviewed by federal courts of appeals. Per the Clean Water Act, a number of decisions by the Environmental Protection Agency Administrator must be heard directly in federal courts of appeals, including agency actions “in issuing or denying any permit.”
A definitional regulation like the WOTUS regulation does not involve the issuing or denying of a permit. Nevertheless, the Sixth Circuit Court of Appeals concluded that it has jurisdiction to decide whether the WOTUS regulations are lawful.
Judge David McKeague, writing for the court, relied on a 2009 Sixth Circuit decision in National Cotton Council v. EPA holding that this provision speaks “not only of actions issuing or denying particular permits, but also of regulations governing the issuance of permits.” The definition of WOTUS impacts permitting requirements. A concurring judge stated he believed National Cotton was wrongly decided, but that the court was bound by the decision.
The Supreme Court has likely stepped in to resolve this dispute because it is a waste of judicial resources for federal courts of appeals to decide whether WOTUS regulations are lawful if they don’t in fact have the jurisdiction to make this determination in the first place. Even before deciding whether it had jurisdiction to hear this case, the Sixth Circuit had issued a nationwide preliminary injunction ruling that the WOTUS regulations are unlawful.
Why does it matter whether federal courts of appeals versus federal district courts have the authority to decide whether the WOTUS regulations are lawful? In its amicus brief asking the Court to decide this case, the state of Ohio, joined by nearly 30 other states, points out that if these (and other) regulations must be reviewed by federal courts of appeals within 120 days following their enactment, and are not, they cannot be challenged in a later enforcement proceeding. But whether states and local governments and others object to a regulation will often depend on how it is applied. So potential future litigants may have no reason to challenge a regulation until long after the 120-day window has passed, but they will be barred from doing so in the future.
