Supreme Court Passes on Blending Lawsuit

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(February 27, 2018) - The U.S. Supreme Court denied a petition for review of a US Circuit Court of Appeals for the DC Circuit decision on February 20, allowing the lower court ruling to stand that the Court of Appeals lacked jurisdiction to consider a challenge to an EPA decision related to blending and bypasses. The case -- Center for Regulatory Reasonableness (CRR) v. EPA, litigated February 28, 2017 -- involves a 2013 decision by the US Court of Appeals for the Eighth Circuit in Iowa League of Cities v. EPA, which struck down the EPA’s efforts to regulate blending by applying secondary treatment limits internal to the treatment plant.  The Agency has since stated that the decision applies only in the Eighth Circuit, and that it will apply the decision elsewhere in the country on a case-by-case basis.

The DC Circuit litigation challenged the Agency’s refusal to apply the Iowa League decision nationwide. The court denied CRR’s petition, finding that it did not have jurisdiction and that if CRR wishes to challenge the non-acquiescence statement, it must do so in a federal district court. Because the DC Circuit’s ruling was procedural in nature, application of the Iowa League of Cities decision, and EPA’s corresponding authority to regulate blending outside of the Eighth Circuit, remains an open legal question.

NACWA was not a party to the DC Circuit litigation and did not choose the venue, but the Association filed an amicus curiae brief to provide a critical national utility perspective on the important and substantive issue of blending. NACWA will remain engaged on this issue with EPA, and through litigation where appropriate, to preserve blending as an important treatment option for clean water utilities.

For more information, contact Amanda Waters, NACWA’s General Counsel.