ATLANTA, GA, July 15, 2016: This week, Southeastern Legal Foundation filed a critical amicus brief in a case related to its challenge of EPA and the Army Corps of Engineers’ interpretation of the Clean Water Act. By redefining “Waters of the United States,” the Agencies granted themselves almost limitless power and jurisdiction. Taking issue with the Executive Branch’s power grab and the serious constitutional violations that result, SLF turned to the courts and challenged the WOTUS rule.
Before challenges to the constitutionality of the WOTUS rule can be heard however, the courts must determine which courts should hear those challenges – federal district courts or the appellate courts. The Clean Water Act directs that certain categories of EPA actions can only be challenged directly in a federal appellate court, but all others can be brought in district court. Recognizing that some courts have interpreted the former categories broadly, SLF filed actions at both the district and appellate courts.
SLF’s appellate challenge was consolidated with all the other appellate challenges and transferred to the Sixth Circuit, which ruled in a fractured 1-1-1 opinion that appellate courts had jurisdiction to hear the challenges. The district courts that have ruled on the jurisdictional issue are split on the issue. The Southern District of Georgia and the Northern District of Oklahoma both agreed with the Sixth Circuit, finding they did not have jurisdiction – the plaintiffs in both actions appealed.
It is SLF’s position that the text of the Clean Water Act mandates that challenges to the WOTUS rule must be heard in district courts. To ignore Congress’s clear mandate violates constitutional separation of powers between the three branches of government.
This past week was a busy one with respect to both the appeal in the Eleventh and Tenth Circuits. In the Eleventh Circuit, where SLF filed an amicus brief (SLF 11th Circuit Brief Link) supporting the coalition of State plaintiffs, the court heard oral argument. And, in the Tenth Circuit, SLF, Pacific Legal Foundation and the Cato Institute filed an amicus brief supporting the coalition of industry plaintiffs (SLF 10th Circuit Brief Link). We anxiously await a ruling by the Eleventh Circuit and scheduling of oral argument in the Tenth.