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On October 11, 2017, the Supreme Court heard argument in National Association of Manufacturers v. Department of Defense, a case regarding the proper jurisdiction of federal circuit courts of appeals with respect to rules issued under the Clean Water Act.

In 2015, the U.S. Army Corps of Engineers and U.S. Environmental Agency (the “Agencies”) issued a final rule intended to clarify the definition of “waters of the United States” as used in the Clean Water Act (the “Clean Water Rule”).  Petitioner associations and companies filed suit in various federal district and appellate courts to challenge the Clean Water Rule, claiming that the definitional changes improperly expanded the Agencies’ regulatory jurisdiction and dramatically altered the existing balance of federal-state collaboration on water resource concerns. Many of the suits were eventually consolidated before the U.S. Court of Appeals for the Sixth Circuit. The Clean Water Rule, Petitioners contended, is inconsistent with Supreme Court precedent and was improperly adopted without satisfying the requirements of the Administrative Procedure Act.  Petitioner National Association of Manufacturers (“NAM”), which had brought its challenge in federal district court, then intervened in the Sixth Circuit litigation and moved to dismiss for lack of jurisdiction, arguing that judicial review must first take place in district court and that this case did not fall within the judicial review provisions of the Clean Water Act.  The Sixth Circuit ultimately rejected this argument and concluded that it could exercise jurisdiction over requests for review of the Clean Water Rule under 33 U.S.C. Sec. 1369(b)(1)(F).  That provision provides for exclusive jurisdiction in the federal circuit courts of appeals to review an action “issuing or denying any permit under section 1342, [the National Pollutant Discharge Elimination System]....”

The question presently before the U.S. Supreme Court is whether the Sixth Circuit erred in holding that it had jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to assess a Clean Water Rule that did not actually “issu[e] or den[y] any permit,” but rather defined the waters that fall within the scope of the Clean Water Act.

To discuss the case, we have Jonathan Adler, Director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.