High Court Case On CWA Findings Might Alter Jurisdiction More Than Rule February 17, 2016

High Court Case On CWA Findings Might Alter Jurisdiction More Than Rule February 17, 2016

Source: Association of California Water Agencies

A pending Supreme Court ruling on whether regulators’ findings that waters are jurisdictional under the Clean Water Act (CWA) are subject to pre-enforcement review might alter the scope of the water law more than EPA’s contested CWA jurisdiction rule, one water attorney says, because it could clear the path for courts across the country to weigh in on the water law’s scope.

If the justices — currently divided 4-4 after the recent death of Justice Antonin Scalia — hold that the regulators’ jurisdictional determinations (JDs) can be judicially reviewable, it could lead to a “significant change” in the scope of the water law given that the findings have been subject to only very limited court review to date, said Neal McAiley, of Miami’s White & Case, during a recent environmental law conference in Washington, D.C.

Such a ruling could allow courts across the United States to weigh in on whether they agree with JDs issued by the Army Corps of Engineers under the CWA on which waters fall under the law and which are exempt, he said.

That could make the pending high court case more significant to the water law than the EPA-Corps joint rulemaking designed to clarify the scope of the CWA, McAiley added. The U.S. Court of Appeals for the 6th Circuit has stayed implementation of that rule nationwide while it weighs whether it has authority to hear challenges to the policy, or whether lawsuits should start in federal district courts where a slew of cases are pending.

The high court will hear oral argument March 30 in Army Corps of Engineers v. Hawkes Co., et al., in which the Corps is appealing a unanimous decision by the 8th Circuit that allowed the peat mining company Hawkes Co.’s suit to move forward despite the government’s objections that a JD is not “final action” subject to challenge. The 8th Circuit held that even without direct legal consequences the findings create new hurdles for property owners.

The justices’ eventual ruling could therefore resolve whether JDs can be reviewed by the courts even before EPA and Corps regulators take enforcement or permitting action based on their findings. An argument in early spring means the high court could issue the decision before its current term ends on June 30.

McAiley told the American Law Institute-Continuing Legal Education “Environmental Law” conference that if the court finds JDs judicially reviewable and landowners start challenging JDs in courts, it would build up a larger body of case law on federal jurisdictional decisions. That could possibly setting new parameters on what waters can be subject to the CWA, given that the issue has only been before the Supreme Court three times before Hawkes, McAiley said. Hawkes could be “as important if not more important to the scope of [CWA] jurisdiction,” he added.

In Hawkes, the Department of Justice (DOJ) on the Corps’ behalf has argued in briefing that the JDs are similar to non-binding agency guidance documents that courts have generally found to be exempt from judicial review. DOJ says that if the 8th Circuit’s decision stands, it risks allowing suits over EPA and other agencies’ guidances, because every such guide is meant to influence regulated parties’ actions to some degree.

Attorneys representing developers in Hawkes hope to convince the justices to expand their test for which environmental orders are final action after the landmark unanimous 2013 decision Sackett v. EPA. That decision required pre-enforcement review of CWA compliance orders on the basis that recipients faced enhanced fines when enforcement would eventually begin.

Since the 8th Circuit in Hawkes only addressed the threshold question of whether the findings can be subject to litigation, the high court will not address whether regulators’ view of CWA jurisdiction is lawful — the focus of the final rule which the agencies finalized on June 29, and which is expected to eventually reach the high court.

The Supreme Court has issued rulings on CWA jurisdiction before that have created legal confusion which prompted the EPA-Corps jurisdiction rule. The court in a 5-4 ruling in 2001 in Solid Waste Agency of Northern Cook County (SWANCC), Petitioner v. United States Army Corps of Engineers, et al. barred regulators from citing the presence of migratory birds as the sole basis for asserting jurisdiction over wholly intrastate waters.

In 2006, the Supreme Court in Rapanos et ux, et al., v. United States, the high court in a 4-4-1 decision produced competing legal tests for determining jurisdiction that led to last year’s rule. Scalia wrote in a plurality opinion that the CWA extends only to waters that are “relatively permanent, standing or continuously flowing” or to wetlands that are immediately adjacent to such waters.

Justice Anthony Kennedy wrote an opinion concurring with Scalia’s decision but for different reasons. Like Scalia, Kennedy says there should be limits on CWA protections for remote waterbodies, but said waterbodies with a “significant nexus” to navigable waters should still be protected. — Bridget DiCosmo Inside EPA – 02/19/2016 , Vol. 37, No. 7