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Supreme Court issues WOTUS jurisdictional winSupreme Court issues WOTUS jurisdictional win

WOTUS rule challenges must be filed in federal courts rather than appellate courts.

Jacqui Fatka

January 23, 2018

3 Min Read
Supreme Court issues WOTUS jurisdictional win

The U.S. Supreme Court ruled that federal district courts — not federal courts of appeals — have jurisdiction to review the 2015 waters of the U.S. (WOTUS) rule.

The National Association of Manufacturers (NAM) filed its challenge to the rule promulgated by the Environmental Protection Agency and the Army Corps of Engineers. The federal government argued that such challenges must be filed in federal courts of appeals under the Clean Water Act’s enumeration of seven categories of EPA actions for which judicial review lies exclusively in the appeals courts.

In giving the opinion from Supreme Court associate justice Sonia Sotomayor, Chief Justice John Roberts said the court’s unanimous decision sides with NAM and that challenges to the WOTUS rule must be filed in federal district courts.

Ellen Steen, general counsel of the American Farm Bureau Federation, said, “This Supreme Court decision brings greater clarity to an important issue that has bogged down the litigation over this and other Clean Water Act regulations for years. That is a positive result, but it also creates uncertainty and confusion in the short term, because the Sixth Circuit must soon lift its nationwide stay of the 2015 rule.”

“Today’s ruling is a victory for the rule of law and for accountability in government,” said James Burling, vice president for litigation with the Pacific Legal Foundation (PLF), which is representing farmers, ranchers and other landowners nationwide who joined this litigation to defend their right to challenge the WOTUS rule. “The EPA’s ‘waters of the United States’ rule may be the most brazen — and lawless — expansion of bureaucratic power in American history. The regulators who imposed it tried to shield it from review by limiting opportunities for the public to bring challenges. The Supreme Court struck a blow for liberty by rejecting this ploy and guaranteeing access to justice for the EPA’s victims.”

Related:Industry optimistic about Supreme Court hearing on WOTUS jurisdiction

Under the terms of the Clean Water Act, people who are harmed by EPA rules like the WOTUS regulation can sue in any federal district court within six years of the rule’s issuance. However, PLF said EPA unilaterally rewrote that provision, decreeing that lawsuits could be filed only in federal courts of appeal. “This twisting of the law allowed just 120 days to file WOTUS challenges and concentrated all cases in a single appellate court,” PLF said.

“If the EPA had succeeded in blocking victims of the WOTUS rule from seeking redress, other agencies would have tried similar ploys,” Burling noted. “The Supreme Court’s rejection of the EPA’s power play strengthens everyone’s right to challenge bureaucratic abuses all across the governmental landscape.”

Steen noted that, at this time, EPA has not yet finalized its proposed rule to delay the application of the 2015 WOTUS rule while the agency considers whether to permanently repeal that rule. She said the Farm Bureau "is considering its options to avoid application of the 2015 rule while EPA moves forward with an appropriate long-term solution that provides clear rules and clean water without requiring a federal permit to plow a field.”

NAM senior vice president and general counsel Linda Kelly said NAM was pleased that the Supreme Court decided to help clarify what the law requires by taking action on this case.

“As manufacturers, we understand the importance of responsibly managing water resources and have been working to protect clean water for decades,” Kelly said. “That’s why we have been asking for a clear rule from the Environmental Protection Agency and the U.S. Army Corps of Engineers that empowers everyone to join in protecting our waters. We will continue to advocate a new rule that conforms to the Clean Water Act, protects our nation’s waters and provides clarity for manufacturers and landowners around the country.”

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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