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SCOTUS to Review Clean Water Act Case

On January 13, 2017, the Supreme Court of the United States granted certiorari in Nat’l Ass’n of Manufacturers v. Dep’t. of Def., et al., a case from the U.S. Court of Appeals for the Sixth Circuit. The case arises from a challenge to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers “Waters of the U.S.” rulemaking, published June 29, 2015, which defined the scope of waters protected under the Clean Water Act. 

Several states and industry associations challenged the rulemaking upon publication, alleging that the definition exceeded the scope of the Clean Water Act. EPA and the Army Corps of Engineers allege that, under the Clean Water Act, judicial review of the final rulemaking must occur at the U.S. Court of Appeals. Several states and trade associations disagree, arguing that the Clean Water Act requires judicial review from a U.S. District Court.

Multiple circuit court challenges have since been consolidated at the Sixth Circuit. In October 2015, the Sixth Circuit stayed the rule nationally pending further review. EPA and the Army Corps of Engineers have since resumed nationwide use of the agencies’ prior regulations regarding the scope of “waters of the United States.” In February 2016, a Sixth Circuit panel determined in a 2-1 ruling that jurisdiction was exclusive to the U.S. Court of Appeals. The Supreme Court is likely to determine whether the Clean Water Act vests judicial review in the federal circuit or district courts.