Supreme Court May Address Venue Issue In Challenge To Clean Water Rule

Date: October 13, 2016 Last Edit: October 17, 2016

Confusion About Which Federal Court Appropriate For WOTUS Challenges May Prompt High Court To Intervene

 

The EPA’s Waters of the United States rule (WOTUS), which places extra regulatory burdens on landowners by requiring more permits to do work on private property, has been challenged multiple times in Federal court. However, the multiple challenges against WOTUS have caused confusion over which Federal court has jurisdiction. Bloomberg BNA reports several attorneys told Bloomberg BNA that “confusion over which federal court should hear challenges to the Clean Water Rule may provide incentive for the U.S. Supreme Court to resolve that question before it is asked to review the regulation on its merits.” Timothy Bishop, a partner at Mayer Brown LLP, said he believes there’s “a very good chance” the court will grant interlocutory review in the case, which would allow the Court to decide which courts have jurisdiction to hear the challenge before the case is decided on the merits. Bloomberg BNA says a group of business associations “petitioned the Supreme Court in early September over the U.S. Court of Appeals for the Sixth Circuit’s decision to retain jurisdiction over nearly two dozen consolidated challenges to the rule.” The case was listed on SCOTUSblog on Wednesday as the “Petition of the day.” SCOTUSblog noted that the issue in the case revolves around “whether the Sixth Circuit erred when it held that it has jurisdiction” that enables it “to decide petitions to review the Waters of the United States rule, even though the rule does not ‘issu[e] or den[y] any permit’ but instead defines the waters that fall within Clean Water Act jurisdiction.”

What This Means For Small Businesses

The Waters of the United States rule is problematic for a number of reasons besides the confusion over which Federal court is the proper venue to hear the case. The Supreme Court’s voice on the issue would be welcome as it would help pending cases against WOTUS proceed.

Additional Reading

NFIB previously reported on the Sixth Circuit Court’s ruling that it had jurisdiction in challenges against WOTUS.

Note: this article is intended to keep small business owners up on the latest news. It does not necessarily represent the policy stances of NFIB.

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