The legal challenges to the waters of the United States rule will end up in the U.S. Supreme Court, a federal appeals court judge said Tuesday. It’s just a matter of how fast that will happen.
Farm groups have been closely monitoring the legal challenges to the controversial rule change to the Clean Water Act, which the groups see as a major expansion of EPA authority. At least 30 states and multiple industries have sued in cases across the country.
The U.S. Sixth Circuit Court of Appeals heard arguments Tuesday regarding its own jurisdiction to rule on dozens of lawsuits filed against the EPA rule. The Sixth Circuit judges now have to decide whether they will take the lead in overseeing the lawsuits and various legal arguments.
The Obama administration wants the Sixth Circuit Court to consolidate cases in the Sixth Circuit and get a ruling that would allow the lawsuits to move directly to the Supreme Court. State attorneys general, however, would like to see the cases play out across the country in individual federal district courts and then appealed in multiple regions across the country. The appeals court heard oral arguments from EPA as well as an attorney for the state of Ohio on that issue Tuesday.
While questioning Martha Mann, a U.S. Department of Justice attorney arguing the case for the EPA and the U.S. Army Corps of Engineers, Judge David McKeague said “this is going to go to the Supreme Court.” He made the remark while quizzing Mann as to why the court of appeals should decide the cases and not federal district courts across the country.
During oral arguments, the judges gave no indication of where they side on the case.
Thirteen states sued EPA on the waters of the United States rule in the U.S. District Court for the District of North Dakota, where originally those states received a stay on the rule. The Sixth Circuit Court of Appeals issued a national stay while considering the legal merits of additional multiple cases filed there.
Eric Murphy, state solicitor for the state of Ohio, told the court that the ultimate legal question of whether the waters of the United States rule is legal should be allowed to play out in the district courts, working its way to the appellate level and then to the U.S. Supreme Court.
Mann argued for the Obama administration that the rule applies nationally, the appeals court should consider the cases combined and render a national ruling. That would save money and time by avoiding “duplicative reviews,” she argued, by allowing the cases to be litigated in the Sixth Circuit Court.
At one point during the oral arguments, the court questioned whether Murphy and his states are looking for “multiple definitions” of waters of the United States by wanting the legal questions to play out at the district level in multiple districts.
“No,” Murphy responded. “I dispute the notion that the jurisdiction should be in this court out of concerns about national uniformity.”
Murphy said the ultimate legality of the rule may be better served by allowing multiple judges in multiple courts to examine the legal questions.
In its oral argument, the Department of Justice cited a case involving the National Cotton Council v. EPA as reason to allow the case to be heard by the appeals court. Back in 2009, the same Sixth Circuit Court ruled EPA’s permitting exemption of pesticides as a pollutant when applied to water was invalid and in violation of the Clean Water Act. The ruling has since required tens of thousands of pesticide applicators to have permits.
The waters of the United States rule places limitations on pollution just as the National Cotton Council case did, so the Sixth Circuit Court has jurisdiction to hear the waters of the United States cases.
“We’re not asking the court to read this case any more broadly than we have all of the other cases that have preceded it,” Mann said. “EPA has time and again gone to circuit courts and said you do not have jurisdiction.”
Plaintiffs who have filed lawsuits to stop the rule have argued the waters of the U.S. rule creates new definitions that ultimately will lead to expanded EPA authority. Mann disputed that assertion. “EPA and the Corps would submit that it is not an expansion.”
Questions as to the legality of the rule itself likely will eventually play out in the U.S. Supreme Court. It was a difference in two earlier Supreme Court rulings that led EPA and the Army Corps of Engineers to draft the new rule in the first place.
Mann said the rule defines whether permits are needed for dredging or discharges under the National Pollution Discharge Elimination System, or NPDES.
“The fact that everybody here is challenging the rule demonstrates the limits and restrictions on them,” she said.