The National Federation of Independent Business filed its lawsuit challenging the Obama Administration’s illegal expansion of Clean Water Act (CWA) jurisdiction over two years ago. But after winning an early injunction to block federal enforcement of the controversial Waters of the United States (WOTUS) Rule, our lawsuit stalled—along with every other suit challenging the WOTUS Rule—in the Sixth Circuit Federal Court of Appeals. Ironically, our lawsuit challenging federal CWA jurisdiction has been mired in its own jurisdictional battle.
The vexing question remains as to whether our suit should be heard first in a federal district court in Oklahoma (where we filed), or in a Federal Court of Appeals. The federal government would prefer for a single court of appeal decide the issue, rather than fighting in separate federal district courts throughout the country. But we’ve argued that the district courts have exclusive jurisdiction to hear challenges to the WOTUS Rule because the lower courts are in a better position to consider the impact of the WOTUS Rule, given veritable regional conditions. As we’ve said before, a three-judge panel in Cincinnati, Ohio may not fully appreciate how the WOTUS Rule affects ranchers and farmers in more arid Western States.
The Supreme Court to Decide the Issue
In another twist of irony, the Supreme Court is now hearing arguments on this question as the Trump Administration moves to rescind (or at least modify) the Obama era WOTUS Rule. Yet even if the Trump Administration rescinds the WOTUS Rule—as NFIB argues it should—that wouldn’t moot the question of where these lawsuits should be litigated because we can fully expect environmental activists to challenge any such action, in which case we are presumably right back at square one. Accordingly, the Supreme Court’s anticipated decision in National Association of Manufacturers v. Department of Defense, may well decide where the next round of litigation begins.
It is difficult to say how the Supreme Court will resolve this thorny question. As detailed in this SCOTUS Blog commentary, the Court seemed to acknowledge that the industry groups challenging the WOTUS Rule have the better textual arguments. Still, there were also signals that some were inclined to side with government.
Also, while these arguments focused on hyper-technical statutory language within the CWA, there is also a constitutional issue in play. Specifically, NFIB has stressed that the federal government’s position raises serious due process concerns because the government argues that all lawsuits challenging federal rulemaking defining CWA jurisdiction must be brought within a narrow statute of limitation. As at least some members of the Court seem to recognize, this would raise serious due process concerns for a landowner who may wish to raise a jurisdictional defense when facing a future enforcement action. Can it really be that Congress has forever foreclosed the right of that landowner to question CWA jurisdiction?