| We left off Part 1 of this CWR series with the opening and responsive briefs being filed in the 6th Circuit Court of Appeals in early January 2017. The litigation in the 6th Circuit was stayed (halted) on January 25, 2017, due to a specific petition request by the National Association of Manufacturers (NAM v. Department of Defense, Docket No. 16-299) to the U.S. Supreme Court. The NAM petitioned for a Writ of Certiorari. |  |
 | The petition was granted on January 13, 2017 – just one hour after the U.S. Department of Justice filed their responsive briefs. This decision by the Supreme Court to review if the 6th Circuit properly found jurisdiction under |
33 USC 1369 (regarding Administrative Procedure and Judicial Review) led to the stay of the 6th Circuit litigation. Why does this matter? Why is it so important to determine if the 6th Circuit has authority over all the combined cases and to issue a nationwide stay of the CWR? Versus the cases being litigated in multiple district courts?
The importance is due to the differences between the laws governing district courts and the courts of appeals. The statutes of limitations (time limit for filing a lawsuit) is 120 days in courts of appeals versus 6 years in district courts. Also, challenges of actions in a subsequent civil or criminal proceeding for enforcement is different. Courts of appeals actions CANNOT be subsequently challenged in civil or criminal court, while district court actions CAN be subsequently challenged in civil or criminal court.
In the Writ of Certiorari being conducted by the Supreme Court, the brief of petitioner National Association of Manufacturers was filed on April 27, 2017, and the deadline for the respondents to file their brief has been extended to July 28, 2017.
The importance is due to the differences between the laws governing district courts and the courts of appeals. The statutes of limitations (time limit for filing a lawsuit) is 120 days in courts of appeals versus 6 years in district courts. Also, challenges of actions in a subsequent civil or criminal proceeding for enforcement is different. Courts of appeals actions CANNOT be subsequently challenged in civil or criminal court, while district court actions CAN be subsequently challenged in civil or criminal court.
In the Writ of Certiorari being conducted by the Supreme Court, the brief of petitioner National Association of Manufacturers was filed on April 27, 2017, and the deadline for the respondents to file their brief has been extended to July 28, 2017.
While this legal process was occurring, other developments have occurred with the entry of the new administration. President Trump signed several executive orders influencing the actions of the EPA and Department of Defense/Corps of Engineers relating to the CWR and definitions of WOTUS*.
- Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, signed January 30, 2017. Commonly referred to as the “2 for 1” EO, it orders that for every one new regulation issued, at least two prior regulations be identified for elimination. Any new costs associated with new regulations are to be offset by elimination of existing costs associated with at least two prior regulations.
- Executive Order 13777, Enforcing the Regulatory Reform Agenda, signed February 24, 2017. This EO orders that the head of each agency designate a Regulatory Reform Officer (RRO) to oversee the implementation of regulatory reform initiatives to repeal, replace, or modify regulations that eliminate jobs; regulations that are outdated or unnecessary; regulations that impose costs that exceed benefits; or regulations that create inconsistencies or interfere with regulatory reform.
- Executive Order 13778, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, signed February 28, 2017. This EO orders the EPA & Department of Defense to review the CWR and publish for notice and comment a proposed rule rescinding or revising the rule. The EO requests that the EPA & DOD consider interpreting the term “navigable waters” in a manner consistent with the opinion of Justice Scalia in Rapanos v. U.S., 547 U.S. 715 (2006).
In response to EO 13778, the EPA announced in the Federal Register (Vol. 82, No. 42/March 6, 2017) its intention to review and rescind or revise the Clean Water Rule and stated that through new rulemaking they will seek to provide greater clarity and regulatory certainty concerning the definition of WOTUS.
Then, the EPA and Department of Defense, Corps of Engineers, released on June 27, 2017, a 42-page pre-publication version of what will be coming out soon in the Federal Register. They addressed EO 13778 in a two-step process. First step, stating they will be re-codifying the regulations (definition of WOTUS) to the definition as it existed BEFORE the 2015 CWR, or what is regarded as the status quo, since the CWR is currently under a nationwide stay. The second step is pursuing notice & comment rulemaking where agencies will conduct a substantive re-evaluation of the definition of WOTUS. In the 22-page pre-amble, they explain their reasoning and cite legal cases supporting their scope of authority to do it this way. ALSO, they talk about the high potential for confusion and uncertainty developing from the legal complexities in the court system (previously explained here).
Interestingly, the pre-publication document makes it clear that the EPA and Corps of Engineers are NOT restricting States from protecting waters regulated under State law more broadly than the federal law definition and refer to Section 101(b) of the Clean Water Act as the second policy goal of the CWA - "to preserve the State's primary responsibility & right to prevent, reduce & eliminate pollution" and to "more fully consider the State discretion to protect waters that are not subject to CWA jurisdiction.”
Essentially, the way the waters have been regulated will remain the same as since the 2008 guidance and we’re repeating the rule-making process all over again. If the rule-making process is going to be dependent on science it is a little hard to see how we are going to get a different outcome from what was previously developed in the CWR. Several other questions remain and will be covered in Part 3 of The Clean Water Rule in the Rearview Mirror.
Stay tuned!
-JMB
*WOTUS - Waters of the United States
Sources:
Pre-publication version of 33 USC Part 328, 40 CFR, Parts 10, 112, 116, 117, 122, 230, 232, 300, 302, and 401, Definition of "Waters of the United States" - Recodification of Pre-Existing Rules, Released June 27, 2017
Webinar: “What's Next for Clean Water Act Jurisdiction: Maintaining - or Draining - the Swamps? The Future of the Clean Water Rule”, Presented at ASWM’s 2017 Annual State/Tribal/Federal Coordination Meeting - Tuesday, April 11, 2017
www.scotusblog.com Docket No. 16-299 National Association of Manufacturers v. Department of Defense
http://legal-dictionary.thefreedictionary.com
Then, the EPA and Department of Defense, Corps of Engineers, released on June 27, 2017, a 42-page pre-publication version of what will be coming out soon in the Federal Register. They addressed EO 13778 in a two-step process. First step, stating they will be re-codifying the regulations (definition of WOTUS) to the definition as it existed BEFORE the 2015 CWR, or what is regarded as the status quo, since the CWR is currently under a nationwide stay. The second step is pursuing notice & comment rulemaking where agencies will conduct a substantive re-evaluation of the definition of WOTUS. In the 22-page pre-amble, they explain their reasoning and cite legal cases supporting their scope of authority to do it this way. ALSO, they talk about the high potential for confusion and uncertainty developing from the legal complexities in the court system (previously explained here).
Interestingly, the pre-publication document makes it clear that the EPA and Corps of Engineers are NOT restricting States from protecting waters regulated under State law more broadly than the federal law definition and refer to Section 101(b) of the Clean Water Act as the second policy goal of the CWA - "to preserve the State's primary responsibility & right to prevent, reduce & eliminate pollution" and to "more fully consider the State discretion to protect waters that are not subject to CWA jurisdiction.”
Essentially, the way the waters have been regulated will remain the same as since the 2008 guidance and we’re repeating the rule-making process all over again. If the rule-making process is going to be dependent on science it is a little hard to see how we are going to get a different outcome from what was previously developed in the CWR. Several other questions remain and will be covered in Part 3 of The Clean Water Rule in the Rearview Mirror.
Stay tuned!
-JMB
*WOTUS - Waters of the United States
Sources:
Pre-publication version of 33 USC Part 328, 40 CFR, Parts 10, 112, 116, 117, 122, 230, 232, 300, 302, and 401, Definition of "Waters of the United States" - Recodification of Pre-Existing Rules, Released June 27, 2017
Webinar: “What's Next for Clean Water Act Jurisdiction: Maintaining - or Draining - the Swamps? The Future of the Clean Water Rule”, Presented at ASWM’s 2017 Annual State/Tribal/Federal Coordination Meeting - Tuesday, April 11, 2017
www.scotusblog.com Docket No. 16-299 National Association of Manufacturers v. Department of Defense
http://legal-dictionary.thefreedictionary.com
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