Argument analysis: Wading through the “themeless pudding” of Clean Water Act jurisdiction

The scope of the federal government’s regulatory authority under the Clean Water Act has long been controversial. Stretch it too far, and it appears that the federal government can regulate every puddle in the nation; narrow it too much, and the government is left unable to protect the quality of interconnected waters. For that reason, each time the government has promulgated a rule defining the act’s geographic scope — as it did in the 2015 “Clean Water Rule” — lawsuits quickly follow. In yesterday’s argument in National Association of Manufacturers v. Department of Defense, the Supreme Court considered the preliminary question of whether those lawsuits should be filed in district courts or courts of appeals.

Rachel P. Kovner, assistant to the U.S. solicitor general (Art Lien)

As described in my preview, the case hinges on a provision of the statute, 33 U.S.C § 1369(b)(1), which specifies seven actions by the Environmental Protection Agency that are reviewable directly in the courts of appeals. The petitioners — a varied group including the National Association of Manufacturers, states, environmental groups, electric utilities and agricultural companies — all argue that the Clean Water Rule does not fall within any of the EPA actions on the list, so lawsuits challenging the rule should be filed in district court. The United States, along with fellow-respondents the Natural Resources Defense Council and the National Wildlife Federation, argues that the rule does fall within the provisions that trigger direct appellate review. Specifically, the government argues, the rule falls within Subsection (E), which covers EPA actions “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title”; as a fallback, the government also argues that the rule is within the scope of Subsection (F), which covers EPA actions “in issuing or denying any permit under section 1342 of this title.”

The oral argument focused largely on whether the government’s position can be squared with the text of Section 1369(b)(1). Timothy Bishop, arguing for NAM, began by stressing that his position is consistent with the act’s text: The Clean Water Rule simply isn’t an “effluent limitation or other limitation,” and it is not promulgated “under” section 1311. Justice Sonia Sotomayor, however, suggested — echoing the government’s position — that perhaps the rule is such a limitation. After all, she noted, “[o]nce you define navigable waters you say where an effluent applies or doesn’t.” Rachel Kovner of the U.S. solicitor general’s office, representing the United States, stressed that point: The rule is a limitation because it restricts where pollutants can be discharged. As for whether the rule was promulgated “under” section 1311, Justice Elena Kagan asked whether “under” could mean “regulating actions taken under” section 1311 — which would seem to cover the rule. Kovner also argued that the rule is “under” section 1311 in the sense that it was promulgated under the authority of section 1311. On the whole, however, the government’s textual argument faced an uphill battle, and it was likely not a good sign for Kovner when Justice Stephen Breyer remarked that it was “hard to agree” with the government’s position.