Law & the Courts

SCOTUS Must Not Let EPA Twist Clean Water Act to Limit Judicial Review

(Photo: Flynt/Dreamstime)
Federal bureaucrats can’t be allowed to curtail citizens’ right to challenge executive actions in court.

One of the brilliant innovations arising out of the conflict between the crown and Parliament in 17th-century England was an independent judiciary with power to override the king. As the American administrative state grows, this innovation is of critical importance: Without meaningful judicial review of administrative actions, arbitrary government would go unchecked. So it is distressing when federal officials seek to limit avenues for affected parties to sue over unlawful government behavior. It is even more distressing when these efforts fly in the face of the plain language of the law.

Early in its new term this autumn, the Supreme Court will hear arguments over when and where lawsuits may be filed over bureaucrats’ interpretations of the Clean Water Act, and of the highly controversial Waters of the United States (WOTUS) rule in particular. WOTUS was the Obama administration’s attempt to expand federal power to cover virtually all water and much of the land throughout the country, in violation of congressional intent, Supreme Court precedent, and clear constitutional limitations on federal authority.

The question of the proper venue for WOTUS lawsuits might seem a technical issue. In fact, however, it is of vital importance for the right to challenge government overreach and for the principle that administrative agencies cannot rewrite statutes with impunity. The Clean Water Act explicitly allows aggrieved parties to sue in any federal district court. But agency officials are twisting the law’s language to truncate the opportunities for such suits. If they’re successful, all manner of laws governing judicial review could be at risk.

When the WOTUS rule was adopted, dozens of states, farmers, ranchers, and other landowners hoping to overturn this blatant land grab sued the EPA in federal district court, as the Clean Water Act requires. The EPA, in turn, sought to ward off the plaintiffs by arguing that the WOTUS rule could be challenged only in a federal court of appeals.

When the Sixth Circuit Court of Appeals ruled for the government on this issue, the plaintiffs asked the Supreme Court to step in and take the case. The Court agreed to do so, and has scheduled oral arguments for October 11.

Although the Trump administration has begun the process of rewriting the WOTUS rule, the litigation over the time and place for legal challenges has lost none of its urgency. Indeed, landowners may well have to sue all over again if the rewritten rule falls short. The very fact that the administration is defending the EPA’s ploy to limit lawsuits makes some wonder how much it will buck the bureaucrats on the substance of the WOTUS rule itself.

No agency should be allowed to rewrite the law to insulate itself from judicial accountability.

So the issue in this case — the manner of judicial review of agency actions — actually matters quite a bit. No agency should be allowed to rewrite the law to insulate itself from judicial accountability. Under a plain reading of the Clean Water Act, affected parties have six years to challenge the WOTUS rule in a federal district court. But under the EPA’s contrived reading of the act, affected parties would have only six months to challenge the rule in a federal court of appeals. The shorter time frame would harm unwary landowners who may not learn of the government’s actions in time to sue. That’s significant because the WOTUS rule imposes strict federal control over almost any wet spot in the country and applies to literally tens of thousands of landowners nationwide.

Filing a challenge in a district court is preferable to being forced to start at the appellate level, because the former venue offers greater opportunity to create a factual record that can lead to informed judicial decisions. Also, multiple district-court decisions will provide differing perspectives on the law that benefit subsequent review in appellate courts and, ultimately, the Supreme Court.

To be sure, the Clean Water Act does require direct appellate review of a limited subset of EPA decisions on permits and discharge standards, where quick resolution is needed. But none of these determinations is remotely similar to the WOTUS rule, a broad, fundamental reimagining of the Clean Water Act’s scope. The plain language of the law requires that challenges to such rules must initially be brought in a federal district court.

The right of ordinary citizens to go directly to court to challenge executive actions is too important and too wrapped up in the history of liberty to be interpreted out of existence.

The people have a right to know how, when, and where they may seek redress from unlawful government actions. That right is meaningless if they can’t rely on the plain language of a governing statute, like the Clean Water Act, to secure their day in court.

The Supreme Court should not let the EPA get away with rewriting the law to get the result it wants.


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