Supreme Court Hears Arguments On Clean Water Rule Jurisdictional Issue

On October 11 the U.S. Supreme Court heard arguments in National Association of Manufacturers v. Department of Defense, a group of consolidated cases in which various environmental and industry petitioners are challenging EPA’s “Clean Water Rule.” Although we did not participate in oral arguments, Earthrise represents Waterkeeper Alliance, Center for Biological Diversity, Center for Food Safety, and others in the case and submitted briefs to the Court. The narrow issue before the Court relates not to the merits of the Clean Water Rule, but rather what court should here the case to begin with. For further background, see this blog post from April 2017.

The early read is that many justices were skeptical of the government’s counter-textual argument that the courts of appeals have jurisdiction under Clean Water Act section 509(b), while acknowledging the potential inefficiencies of litigating challenges to national rules in district courts. Media coverage of the arguments below:

Greenwire 

Washington Examiner

Law360 (subscription)

Scotusblog (has link to transcript)