In a unanimous decision issued on Monday, the U.S. Supreme Court ruled that challenges to the 2015 Clean Water Act Waters of the United States rule should have been brought in district courts, not courts of appeals. This result was widely expected and predicted, though most were expecting a 6-3 or 7-2 decision, not a unanimous decision. Read the ruling by clicking here…
This decision is likely to lead to considerable confusion in the coming days and weeks. It’s at least conceivable that the 2015 Rule could take effect in some states soon unless Environmental Protection Agency and the Army Corps of Engineers act, or a district court enjoins the 2015 rule nationwide.
The EPA and Corps have not yet finalized a proposed repeal of the 2015 rule or their proposal to extend the application of the 2015 Rule by two years. It’s not clear if/when agencies will finalize either action, but the whole reason they proposed to extend application of the 2015 rule was to avoid the very scenario we are now in.
The Sixth Circuit previously stayed the 2015 rule nationwide; however, the Supreme Court’s decision should result in dismissal of the Sixth Circuit proceeding, and a lifting of the nationwide stay.
Finally, one district court stayed the 2015 rule, but it did so in only 13 states. It’s likely that plaintiffs in other cases (e.g., the industry coalition) will ask another district court to issue a nationwide stay. But until that happens, there is at least the possibility that the 2015 WOTUS rule could take effect after all.
It’s expected the Court will take about a month to issue a certified judgment, which is the action that sends the case back down to the Sixth Circuit. It’s unlikely anything will happen to the nationwide stay before then. The bottom line is we’ll just have to wait and see how this all pans out.
“This decision is likely to lead to considerable confusion in the days and weeks ahead,” according to the Water’s Advocacy Coalition, of which the Agricultural Retailers Association is a member. “If the district courts do not issue a nationwide stay or if Congress does not act, the WOTUS rules will likely differ from state to state, creating even more confusion and uncertainty. It is difficult for businesses and states to operate with this confusion and it will undoubtedly be harmful to our nation’s economic growth. The agencies are still working on a rule to delay the applicability date of the 2015 WOTUS Rule however, we need Congress’ help to ensure that the rule is never implemented on the ground.”
Both the House and Senate FY 2018 Interior Appropriations Bills, as well as the FY 2018 House Energy and Water Appropriations Bill included language that would allow the EPA to withdraw the 2015 rule. This would help the EPA quickly finalize the withdrawal of that rule, ending the confusion and allowing all parties to focus time and efforts on creating a new rule.
David Y. Chung, Crowell & Moring LLP, contributed to this article.