SCOTUS on WOTUS: Arguments on which courts should hear challenges to reg's

WASHINGTON, DC: You want to build a house, add a pool, build a necessary retaining wall, or even just fix a drainage problem in your front yard. No problem. You draw up your plans, walk down to city hall, and seek a permit. Sometimes that process is easy and sometimes it’s not, but either way you are confident that you need to obtain approval from only your local government. Right? Wrong.

In 2015, Obama and his power-hungry Environmental Protection Agency (EPA) unilaterally redefined “waters of the United States” (WOTUS) such that the federal government can now exercise jurisdiction over nearly every piece of property in America. So now, to build that home or put in that retaining wall, you very well may also need to seek (expensive) approval from the EPA and Army Corps of Engineers.

As a continuation of its successful work challenging the EPA and its repeated violations of the constitutional, statutory, and case law, Southeastern Legal Foundation filed several suits on behalf of itself and industry clients challenging the Obama EPA’s unlawful actions in its unprecedented overreach. Unfortunately, the lawsuits quickly came to a standstill when the question arose – should these cases be heard in federal district courts or federal courts of appeal? The answer would be, and is, critical to future cases well beyond the WOTUS challenge.

The majority of cases filed in federal court start out in federal district court. This is especially true for cases involving the Clean Water Act because how water is sourced and used in one area of the country is vastly different than in another. But because of similarities in seven particular situations, Congress carved out an exception for seven EPA actions that must be challenged first in the courts of appeals.

After two years of arguing over which court can hear SLF’s challenge to EPA’s unconstitutional WOTUS definition, the Supreme Court heard argument.

The beginning of oral argument focused on a discussion of the Clean Water Act’s text and Congress’ intent. In other words – what does the statute say and why does it say that?. Tim Bishop, arguing on behalf of the industry petitioners, explained that in defining WOTUS, EPA did just that – write a definition. It did not set forth an “effluent limitation” or “other limitation” such that the act of defining “waters of the United States” falls within one of the seven congressionally identified actions. While Mr. Bishop faced some challenging questions from Justice Kagan (as did the government), Justice Breyer stated that it was “hard to agree” with the government’s characterization of WOTUS as a “limitation.”

Another line of questioning focused on the alleged inefficiency of bringing suits in many district courts around the country, versus going directly to the courts of appeals (which, by statute, would automatically be consolidated into one court of appeals). One cannot deny the additional resources used in multiple suits, but Ohio Solicitor General Eric Murphy, arguing for the state petitioners, offered that multiple suits also lead to better reasoned opinions and law. If it seemed like the government won this point, the courtroom quickly realized the Justices were more concerned with future litigants being foreclosed from challenging EPA rules (since under the government’s interpretation, all challenges must be brought within 120 days of EPA publishing its rule) than multiple courts hearing multiple actions.

SLF is hopeful that the Court will once again agree that it cannot “stand on the dock and wave goodbye as EPA embarks on a multiyear voyage of discovery” and “reaffirm the core . . . principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statutes should operate.” For if it doesn’t, future litigants may be foreclosed from challenging the Obama EPA’s unconstitutional actions which, buried as they are in hundreds of thousands of pages of rules, come to light every day – and for all future administrations that likewise overreach constitutional boundaries with executive authority.

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