Implications of the Supreme Court's Clean Water Rule/WOTUS Ruling

Originally published on Environmental Law Prof Blog.

Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to dismiss the appellate court petitions.

This post provides brief answers to a few likely questions about the decision.

Was this a surprising outcome? It was not. Many legal observers expected the Court to reverse the Sixth Circuit. Indeed, the two Sixth Circuit judges who concluded that they did have jurisdiction were rather unenthusiastic about their holding and blamed it primarily on precedent. The government's arguments were grounded primarily in judicial and administrative convenience rather than statutory text, which, in this textualist era, is a pretty good recipe for a 9-0 loss.

What are the immediate effects? Before reaching its jurisdictional holding, the Sixth Circuit had issued a nationwide stay on implementation of the rule. That stay now must dissolve; a court cannot sustain an injunction in a case in which it lacks jurisdiction. That means the Clean Water Rule will now go into effect in those areas where it has not been stayed by a federal district court. Litigation also will now proceed in multiple federal district courts.

If you have read some of the attacks on the Clean Water Rule, you might think this will lead to huge changes in on-the-ground practices and that federal agencies will now be asserting jurisdiction over just about anything wet. That outcome is exceedingly unlikely. As I've explained in more detail elsewhere, the Clean Water Rule makes subtle adjustments in the scope of federal jurisdiction and provides somewhat higher levels of clarity. I think it is a helpful rule, but it is far from transformative.

How will this affect current rulemaking efforts? The Trump administration has been outspoken in its opposition to the Clean Water Rule, and it is currently pursuing multiple rulemakings designed to either repeal the rule or to delay its effective date. The administration has also signaled its intent to eventually replace the pre-Clean Water Rule jurisdictional standards with something new, but it has not yet issued a notice of proposed rulemaking for that effort. So how, you might wonder, will this decision affect those efforts? I think there are two likely consequences, both of fairly minor importance.

First, this decision will increase the Trump administration's sense of urgency. A rule that the administration strongly opposes will now go into effect; obviously that ups the ante. But it may not make much difference. The administration has always been in a hurry to get rid of the Clean Water Rule, and the additional motivation may not accelerate its schedule.

Second, this decision undercuts some of the reasoning in the Army Corps/EPA's proposals to repeal or delay the Clean Water Rule. In some parts of its proposal, the Trump administration argued that it did not need to analyze consequences of repealing the Clean Water Rule because the rule was already stayed (in other parts of the proposal, and in public rhetoric, the administration has patted itself on the back for proposing a major change). That reasoning was always suspect; getting rid of a rule that is subject only to a temporary stay obviously is a legally consequential action. But now that the stay will soon be gone, that reasoning looks even more capricious. Nevertheless, I'm skeptical that this shift will make a big difference in case outcomes. It won't matter for direct challenges to the Clean Water Rule (because those challenges will be to the rule itself, not to the Trump administration's follow-up actions), and while it might matter to challenges to the coming repeal, there are plenty of other arguments on which those cases can also turn.

What will the future bring? I have no crystal ball, but here's my best guess.

1. The litigation against the Clean Water Rule will now proceed in multiple federal district and, then, appellate courts, producing conflicting outcomes. If the cases are not mooted, and I predict that they won't be, all of this will wind up before the United States Supreme Court.  
2. The Trump administration will finalize its attempts (maybe one, maybe both) to repeal the Clean Water Rule, and then will argue that these attempts moot the litigation over the 2015 rule. Environmental groups and some states will challenge the repeals, however. Some of those challenges will be successful, which will in turn lead to conflicting results on the mootness arguments.  
3. While all this litigation is pending, and toward the end of this term, the Trump administration will issue a new rule creating a new jurisdictional standard. That will lead to an additional round of rule challenges, as well as to a new round of mootness claims.

In other words, we're headed for a mess that will take a long time to resolve. And it's a shame. The Clean Water Rule was the best effort anyone has ever made to reconcile the goals of protecting water resources and providing clarity and predictability. It wasn't perfect, but nothing in this realm could be. It deserved a strong defense from EPA, the Army Corps, and DOJ, not the set of flailing attacks it is now receiving.