Multiple legal challenges to the Army Corps of Engineers and the Environmental Protection Agency’s controversial rule redefining “waters of the United States” (WOTUS) raise important questions. In National Association of Manufacturers v. DOD, the Supreme Court addressed which is the proper venue for challenging a rule like WOTUS – the federal district courts or the federal courts of appeals.
The Supreme Court heard oral argument in this case last October. The issue is important because it is unclear where and when regulated parties can challenge certain types of federal rules interpreting the Clean Water Act. Filing a claim in the wrong court can result in losing the right to challenge the rule at all. Under a plain reading of Act, affected parties have six years to challenge the WOTUS rule or any subsequent rule defining the agency's general jurisdiction under the Act in a federal district court. But under the EPA's reading of the Act, affected parties would have only six months to challenge the rule in a federal court of appeals. Various State, industry, and landowner groups urge the High Court to rely on a plain reading of the Act to maximize the opportunity for the regulated public to challenge rules that define the scope of the Act.
On January 22, the Supreme Court released a unanimous decision authored by Justice Sotomayor holding that any challenges to WOTUS must be filed in federal district courts.
Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
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