WASHINGTON, Oct. 11, 2017 - The Supreme Court appears poised to allow challenges to the “waters of the U.S.” rule to proceed in federal district courts, as sought by dozens of farm groups.

First, however, a caveat: Predicting the outcome of Supreme Court arguments is problematic, to say the least. The court’s members are skilled at questioning the attorneys before them without revealing which way they’re leaning. And even though they come to arguments well informed of the issues, the justices still have to meet afterwards to discuss the case, which arguably provides an opportunity for minds to be changed.

Nevertheless, the court seemed to be leaning toward the industry position, as expressed by Mayer Brown attorney Tim Bishop, representing the National Association of Manufacturers and a coalition that includes farm groups such as the American Farm Bureau Federation. The federal government, which opposes NAM, was represented by Rachel Kovner, assistant to the Solicitor General, while 30 states opposed to WOTUS were represented by Ohio Solicitor General Eric Murphy. (Briefs in the case can be found here.)

“It went really well,” Scott Yager, environmental counsel at the National Cattlemen’s Beef Association, said in an edition of NCBA’s Beltway Beef audio. “The questioning both from the liberal and conservative wings, it’s all pointing to us winning this issue.”

Yager told Agri-Pulse afterwards that he thought the court was “leaning heavily toward the words in the statute,” which the NAM coalition contends clearly point to the district courts as the proper place for any WOTUS challenges. Nevertheless, he added, “anything can happen between now and the issuance of their decision, so take (the prediction) with a grain of salt.”

The venue is important, Yager said. The government’s approach would “truncate the process,” he said on Beltway Beef, and “deprive us of the ability to have as many opportunities as we can to have courts hear this issue.”

In the courtroom, the justices focused on the language in the Clean Water Act that specifies where disputes should be heard. The text does not specifically address WOTUS, but lists seven actions that are reviewable in the courts of appeals, including the approval or promulgation of “any effluent limitation or other limitation” under four sections of the law, and the issuance or denial of “any permit under section 1342 of this title," which deals with National Pollutant Discharge Elimination System (NPDES) permits, not wetlands permits.

Bishop told the justices the law is very clear about the categories that should be heard in the appellate courts, and that if Congress had wanted to include WOTUS, it would have done so. On the contrary, decisions related to WOTUS – such as permitting or enforcement matters – all go to the district courts.

Chief Justice John Roberts wondered about the practical effects of allowing district courts to hear the challenges. “You could have dozens of the district courts engaged in the same activity,” he said.

But Bishop said cases that go through both the district courts and then the appellate courts produce better decisions. He also said that “once the internal skirmishing is over,” parties involved in district court cases tend to get together and dismiss some of them.

Afterwards, longtime Justice Department Clean Water Act attorney Stephen Samuels (now retired) said he was pleased that Roberts brought up the efficiency issue, something that “as chief justice he’s particularly concerned about.” Roberts “wants there to be efficiency and a lack of duplication, so I think he showed he has an open mind about where this should end up.”

Kovner told the court that the Clean Water Rule acts as a “limitation” because it sets the geographic boundaries of where discharges can occur.

But Justice Stephen Breyer peppered Kovner with pointed questions about the law’s specific language, saying that an effluent limitation “is a restriction established … on quantities,” adding, “with that in mind, it’s hard to agree with you.”

After the arguments, Bishop said he thought Breyer’s questions “reflected our view of how the statute should be read.”

Another issue raised was whether a farmer, for example, would be able to challenge the WOTUS definition if he is subject to an enforcement action. The CWA says challenges in the appeals courts must be filed within 120 days.

“You’re precluded by (the CWA) from challenging the rule even if you think the rule is unlawful under the statute,” Bishop said after the arguments. As an issue of fairness, he said, “I think that argument ought to have some traction.”

But Samuels said that an individual who is subject to an enforcement action could still rely on the WOTUS rule.

“If the rule has been upheld in a petition for review, but then it’s raised as a defense in an enforcement action, that could be allowed to go forward, but it’s not the entire rule that’s at stake,” he said.

“The individual’s interests are protected, but also the interest in having finality on the validity of the rule is protected as well,” he said.

NCBA’s Yager said that if the justices decide to issue a unanimous ruling, then a decision could appear within weeks. Otherwise, he said a “January or February timeframe” is more likely.

EPA and the Army Corps of Engineers have just ended their comment period on a proposal to repeal WOTUS. Yager said the best outcome for WOTUS opponents would be if the court issued its decision and the agencies followed soon after with their repeal of the rule.


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