In July the National Federation of Independent Business filed a lawsuit challenging the legality of a controversial rule from the Environmental Protection Agency and Army Corp of Engineers, which radically expands federal jurisdiction under the guise of the Clean Water Act of 1972. As we’ve explained previously, the Waters of the United States Rule (WOTUS Rule) effectively re-writes the Clean Water Act’s jurisdictional provisions, and in a manner that unconstitutionally expands federal powers. Indeed, EPA and Army Corp were previously rebuffed for over-reaching in the U.S. Supreme Court, and we expect that will ultimately happen in this case as well.
What is more, we also believe that EPA and Army Corp patently violated the Regulatory Flexibility Act, which was designed to protect small businesses from new burdensome regulations. They flat-out refused to take small business concerns seriously. In fact EPA and Army Corp have audaciously certified that the WOTUS Rule will have no adverse impact on small business—a bold-faced lie that is contradicted by EPA’s own statements.
So what has happened since we filed our lawsuit in July?
Not a whole lot. We’re still far from getting our day in court because—apparently—EPA and Army Corps are afraid to stand and defend their actions. Instead, they’re trying to dodge our punches. But the good news is that we may soon be getting down to brass tax.
On the one hand the Agencies insist that the WOTUS Rule effects no great change in the law, and that it’s entirely compatible with the Supreme Court’s decision in Rapanos v. United States. Yet, if they really believed the WOTUS Rule was all that defensible then they wouldn’t be running from the fight. But that’s exactly what they are doing here. They are playing procedural games of jurisdictional cat-and-mouse, in an effort to delay a show-down with NFIB.
To be fair, they have good reason to want to avoid a square fight because initial indications show that reviewing courts are not buying what EPA and Army Corps are selling here. At the end of August, in a lawsuit advanced by a coalition of western states, a federal judge in North Dakota issued an injunction blocking the WOTUS Rule in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. And just last week, the Federal Court of Appeal for the Sixth Circuit, in Cincinnati, issued a stay to block enforcement of the WOTUS Rule throughout the rest of the country—pending its review of the case. In blocking enforcement, both courts opined that the WOTUS Rule is likely to be struck-down. No wonder EPA and Army Corps are anxiously working to minimize judicial review.
So far they have put all of their energy into slowing down the 16 different lawsuits that have been filed, in a bid to consolidate those cases into a single proceeding. Specifically, EPA and Army Corps are seeking to limit judicial review by trying to have all of these cases heard before a single federal court of appeal—which would cut-out the possibility of even a district court judge ruling on the merits. As an alternative, EPA and Army Corps had sought to have these various lawsuits consolidated into a single proceeding before a district court judge; however, we successfully opposed that maneuver. Yesterday the United States Judicial Panel on Multidistrict Litigation (JPML) ruled in our favor, holding that there is no reason to consolidate these cases. In other words, the JPML panel saw through their gamesmanship, and called EPA and Army Corps out for inappropriately trying to avoid robust judicial review.
That is good news because it means that we can finally get back to business in our lawsuit before the Northern District of Oklahoma. But once again, EPA is trying to stall. Now they are asking the judge in our case to hold-off on considering our claims until another court—the Federal Court of Appeals for the Sixth Circuit—determines whether jurisdiction rests exclusively with the Court of Appeals, or whether our lawsuit should proceed in District Court. Again, their goal is to minimize the possibility of robust judicial review precisely because they are afraid that the WOTUS Rule is likely to be struck down. As such, they’re hoping that they are lucky enough to get a favorable opinion in a single court—with no opportunity for further review of their sweeping new rules. Yet there jurisdictional arguments lack substance.
Indeed, the Federal District Court of North Dakota has already determined that jurisdiction properly rests with the district courts, not with the Sixth Circuit Court of Appeal. And while the Sixth Circuit is poised to make its own decision on this jurisdictional issue in the coming month or so, the Federal Court of Appeals for the Eleventh Circuit is now weighing-in on the issue—as a coalition of mostly eastern states maintain that they should be able to proceed with their lawsuit in the Federal District Court of Southern Georgia. Meanwhile, we maintain that our lawsuit was properly filed in the Northern District of Oklahoma—and that EPA and Army Corps should stand and fight there.
Of course, it’s easy to understand why the Agencies would prefer to litigate in a single forum, rather than fighting on multiple fronts. But as we argued in opposing their efforts to consolidate these cases into a single district court, it’s inappropriate to yield to expedient governmental concerns when they’re imposing sweeping new rules on the American people. And at the end of the day, especially if we want to ensure that the court’s get-it right, it’s both necessary and proper to allow for robust judicial review.
To be sure, when we’re dealing with novel legal issues, it’s affirmatively helpful, for the ultimate resolution, if various courts are allowed to examine and flesh-out the issues. It’s a sore subject still, but it’s worth remembering that, of the many lower courts to rule on the constitutionality of the Affordable Care Act’s Individual Mandate, only one court had endorsed the government’s position that the Mandate could be upheld as a constitutional tax. Ultimately, the Supreme Court (or at least Chief Justice Roberts) found that to be a compelling justification for the Mandate. Though that case didn’t come out the way small business would have liked, it stands as a very poignant reminder that ultimately more judicial review results in a more thorough examination of sweeping regulatory actions. And of course, that should generally be viewed as a good thing because we want to be sure that difficult issues are fully fleshed-out, especially when so much is on the line.
The reality is that the scope of Clean Water Act jurisdiction has long been a murky question—so much so that Justice Alito recently said, in Sackett v. United States, that ultimately Congress must act to bring clarification. But the one thing that is clear is that it’s not the role of EPA or Army Corp to re-write the Act to advance the Obama Administration’s environmental agenda. Nor is it within their power to do so in a manner that exceeds the outer limits of federal constitutional power, or for that matter to contravene the Supreme Court’s definitive decision on Clean Water Act jurisdiction in Rapanos.
Yet, even if there is a colorable argument that the WOTUS Rule merely reinterprets the Act consistent with the Rapanos decision, at the end of the day, this case is likely going to go to the Supreme Court. And the more full and robust judicial review the Rule receives in the lower courts, the better the Court will be situated to resolve the questions presented in these cases. Of course, if the Agencies’ goal is to avoid review in the Supreme Court—for fear that the Court will strike down the WOTUS Rule—then their strategy of playing jurisdictional cat-and-mouse makes a lot more sense. To put it simply, they know, as well as we do, that their arguments hold no water.
