PLF files brief on jurisdiction of Waters of the United States rule challenges


PLF, the Cato Institute, and Southeastern Legal Foundation filed an amicus brief last week in Chamber of Commerce, et al. v. EPA, et al., a Tenth Circuit case that will decide which courts, district or appellate, should properly hear challenges to EPA’s “Waters of the United States” rule.

When EPA and the Army Corps of Engineers issued the “Waters of the United States” rule, a new and expansive definition of regulatory jurisdiction under the Clean Water Act, many took serious issue with its constitutionality. PLF, as Liberty Blog readers likely know, was among of them. But before challenges to the constitutionality of the WOTUS rule can be heard, the courts must determine which courts should hear those challenges.

Section 509(b1) of the Clean Water Act, 33 U.S.C. § 1369(b), directs that certain EPA actions under the Clean Water Act can only be challenged directly in a federal appellate court, not–as is typical–in a district court. Some federal appellate courts have interpreted this rather specific list broadly to include not only the specified actions, but also just about everything EPA does under the Clean Water Act. Other courts have read the statute as only applying to a definite and specific list of EPA actions.

Defining the jurisdictional scope of the Clean Water Act is not on that list. But, due to uncertainty over how broadly some courts have interpreted the list, many challengers–like PLF, on behalf of a number of industry groups–filed in both district and appellate courts. The many challenges brought in the appellate courts were consolidated and heard before the Sixth Circuit, which ruled that appellate courts, and not district courts, had jurisdiction to hear the challenges.

The district courts where challenges to the WOTUS rule have been filed have split between disagreeing with the Sixth Circuit and accepting jurisdiction and agreeing with it and declining jurisdiction. The Northern District of Oklahoma was one of the latter. After it dismissed the cases brought by the U.S. Chamber of Commerce, the National Federation of Independent Business, and the state of Oklahoma, the plaintiffs appealed to the Tenth Circuit, arguing that the district court was the proper place for the challenge to be heard. PLF, the Cato Institute, and Southeastern Legal Foundation filed a brief supporting their case.

We argue that not only is issuing the WOTUS rule simply not among the Clean Water Act’s specifically listed items warranting direct appellate review, but also that broadly construing that list imposes limitations on due process that are only appropriate in certain circumstances. When misapplied to the context of Clean Water Act regulatory jurisdiction, those limitations threaten to severely restrict the ability of landowners to sue the EPA and Army Corps when the agencies overstep their bounds–a result the Supreme Court has sharply disapproved of in its Sackett and Hawkes opinions. Oral argument has not been scheduled yet, but we will keep readers updated as the case progresses.