(October 17, 2017) - The U.S. Supreme Court heard oral arguments October 12 in National Association of Manufacturers (NAM) v. EPA, the litigation over the 2015 Clean Water Rule.  The Rule, issued by the Obama Administration in an attempt to clarify the application of the Clean Water Act (CWA) to isolated streams and wetlands, was challenged by multiple parties in federal district courts and appellate courts throughout the country.  The appellate cases were consolidated in the U.S. Court of Appeals for the Sixth Circuit, and the Supreme Court’s review is focused on whether the action should proceed at the appellate or district court level. 

The oral arguments focused on the application of  33 U.S.C § 1369(b)(1), which identifies seven EPA actions under the CWA, including the issuance of effluent limitations and final actions on permits, that are reviewable directly in the courts of appeals.  EPA argued that this section should be interpreted broadly, and that the Clean Water Rule is effectively an effluent limitation in that it establishes where pollutants may be discharged.   Opponents argued that because section 1369(b)(1) provides a specific list of actions subject to direct appellate review, the Court should not deviate from the text of the statute. 

The justices’ questions focused on striking the right balance between a strict reading of the text, and its reasonable application.  Some justices seemed inclined to agree with EPA that the Rule ought to be subject to immediate appellate review, with Justice Ruth Bader Ginsburg pointing out that to hold otherwise would mean individual permit actions would be reviewed in the courts of appeals, while rules with broader application would be subject to piecemeal challenges in the district courts.  But Justice Stephen Breyer remarked that it was “hard to agree” with EPA’s position based on the text of the statute. 

Chief Justice John Roberts, on the other hand, noted the potential due process concerns with eliminating district court review, given the shorter statute of limitations for appellate review and the importance of preserving the right of parties to challenge the rule itself as an affirmative defense in enforcement litigation at a later time. 

NACWA continues to track this litigation, most recently hosting a Hot Topics in Clean Water Law webinar highlighting the litigation and ongoing rulemaking.  The Court’s decision, which could come any time before the end of the current term in June, will impact any future litigation over CWA jurisdiction – including efforts by the Trump Administration to draft a narrower rule.