Today, the U.S. Supreme Court issued a unanimous opinion in National Assoc. of Manufacturers v. Department of Defense, et al. (the WOTUS case). The Court held that the plain language of the Clean Water Act (CWA) requires that appeals of such Environmental Protection Agency (EPA) rules as the redefinition of “waters of the United States” must be heard first in the federal district courts. Whereas all appeals of most EPA Clean Air Act (CAA) rules must be heard in the federal courts of appeals, Congress chose not to do this under the CWA. Congress can, of course, amend the law if it is a problem. The U.S. Court of Appeals for the Sixth Circuit’s ruling is reversed.

The Court points out that reviews in the courts of appeals must take place within 120 days of the rule’s promulgation, but any review of a rule in the federal district court must take place within 6 years of the date the claim accrues. The Court also notes (in Justice Sotomayor’s opinion) that the administrative actions regarding the WOTUS rule issued by the new administration did not moot this appeal.

After the revised definition of “waters of the United States” was published on June 29, 2015, several parties challenged the Rule in federal district courts around the country. The Judicial Panel on Multidistrict Litigation (JPML) denied the Government’s request to consolidate these appeals in a single district court, but only one district court ruled that it had jurisdiction (North Dakota v. EPA, 127 F. Supp. 3rd 1047 (D. N.D. 2015)).

Once appeals were filed in the federal appellate courts, the JPML consolidated the appeals and transferred them to the U.S. Court of Appeals for the Sixth Circuit, which issued a nationwide stay of the EPA’s Rule and which later decided (in 2016) against dismissing these appeals. There things stood until today’s Supreme Court ruling reversing the Sixth Circuit with instructions to dismiss the petitions for review for lack of jurisdiction.

The District Courts will now be obliged to determine how this litigation will proceed, which could follow separate tracks back to the U.S. Courts of Appeals. While some confusions and delay may be the inevitable result, EPA has undertaken a rulemaking proceeding to delay the effective date of the new rule which, if promulgated, may buy some time for everyone.