On January 22, the Supreme Court held that all lawsuits challenging the Clean Water Rule must be brought in U.S. District Courts. The decision resolves the procedural question about where challenges to the Clean Water Rule should be filed. The Clean Water Rule, published in 2015 by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE), clarifies water resource management in the United States under the Clean Water Act (1972).
The Supreme Court's ruling concludes efforts made under both the Obama and Trump administrations to obtain a ruling that would have permitted a challenge to the Clean Water Rule to be brought in the U.S. Circuit Courts of Appeal.
The Supreme Court considered the issue on appeal following an October 2015 decision by the U.S. 6th Circuit Court of Appeals to issue a nationwide stay of the Clean Water Rule, issued by the Obama administration and also known as the Waters of the United States rule, or WOTUS.
The Clean Water Act language at issue prescribes judicial review of rules within the Clean Water Act. The Act states that U.S. district courts will hear rule challenges except in the case of seven types of actions by the EPA designated for direct review by the court of appeals.
In a unanimous decision, the Supreme Court held that the WOTUS rule does not fall within the types of challenges that may be filed in the U.S. Circuit Courts of Appeal.
The result of this decision is that the 6th Circuit did not have jurisdiction to hear the WOTUS rule challenge or to issue the 2015 stay of the Clean Water Rule.
While the Supreme Court considered the WOTUS rule judicial review jurisdiction question, the Trump administration is taking steps to repeal and replace the WOTUS rule.
The EPA and the USACE have proposed to repeal the WOTUS rule (and to impose a moratorium by rule) that would prevent enforcement of the WOTUS rule until 2020. The federal government is taking these actions so that the WOTUS rule can not be applied as law even if the 6th Circuit's stay is lifted.