According to the U.S. Supreme Court, “Our constitutional structure does not permit this [U.S. Supreme] Court to rewrite the statute that Congress has enacted.” Furthermore, “The Court declines the Government’s invitation to override Congress’ considered choice by rewriting the words of the statute.”
Justice Sonia Sotomayor continues to hammer EPA by saying, “Unable to anchor its preferred reading in the statutory text, the Government seeks refuge in a litany of extratextual considerations that it believes support direct circuit-court review of the WOTUS (Waters of the United States) rule.”
These stinging rebukes were aimed at EPA and the U.S. Army Corps of Engineers (Corps) for their effort to create one of the largest grabs of authority over private property under the Clean Water Act (CWA). The U.S. Supreme Court on January 22, 2018, issued an opinion on a narrow legal interpretation as to whether review of the WOTUS rule would be under jurisdiction of a U.S. district court or, as EPA argued, under the jurisdiction of a United States Court of Appeals.
Using arguments only lawyers would love, Justice Sotomayor eviscerates EPA’s arguments that the WOTUS rule should be reviewed by an appeals court.
Seven categories for EPA action.
The CWA sets forth seven categories for EPA action where review is directly and exclusively under the jurisdiction of federal courts of appeals. EPA contended that its WOTUS rule should be reviewed as approving or promulgating an effluent limitation or other limitation under various sections of the CWA. EPA argued, and with apparent support from the Trump Administration lawyers, that the WOTUS rule would fit as an “other” limitation.
EPA’s other argument was the WOTUS rule was similar to “…issuing or denying any permit” under the CWA. The Supreme Court disagreed with EPA’s grab for power and said simply “We disagree” with your attempting to rewrite the CWA.
EPA contended that in issuing the WOTUS rule, the rule “readily qualifies as an action promulgating or approving an ‘other limitation’ under section 1311” of the CWA. Justice Sotomayor and the Court said simply, “We disagree.” The Supreme Court says with some incredulity that the WOTUS rule is not an effluent limitation and points out the government really doesn’t disagree. An effluent limitation under the CWA is a restriction on what may be discharged into water. The WOTUS rule imposes no such restriction. The Court, in amazement, said, “The rule announces a regulatory definition for a statutory term and imposes no enforceable duty on the private sector.” The Court goes on to describe effluent limitations or other limitation as a restriction and frankly makes fun of EPA’s interpretation of trying to expand its jurisdiction. The Court describes EPA attempting to escape the limitations of the CWA and the fact that EPA could not “sweep broadly” using the language of the CWA.
Let’s analyze the word “any”
In fact, the Court engages in an analysis of the word “any.” EPA had attempted to use the word “any” to modify the term “other limitation.” Justice Sotomayor said that it was impossible to expand the word “any” to include the WOTUS definition in “other limitation.” The Court points out that Congress wrote the statute and neither EPA nor this Court is “…free to rewrite the statute to the Government’s liking.”
Many writers on WOTUS, including me, have argued that EPA was attempting to expand its jurisdiction in an unlawful way. This Supreme Court confirms that determination conclusively. The opinion continues to rip EPA and the Corps for attempting to develop language that pose no barrier to their reading of the CWA.
One sentence caught my attention, where the Court says “But the Government’s practical effects test is not grounded in the statutory text.” The Court was clearly saying EPA and the Corps action were out of control and many of you reacted by arguing this very point. Another solid conclusion by the Court is where it said “Beyond disregarding the statutory text, the Government’s construction [of CWA] also renders other statutory language superfluous.”
In further criticism of the EPA and the Corps, the Court says “Rather than confront that statutory text, the Government asks us to ignore it all together.”
This sentence says it all.
“The [Supreme] Court declines the Government’s invitation to override Congress’ considered choice by rewriting the words of the statute.”
After slamming EPA and the Corps, the Court decision simply says a U.S. federal district court is the proper place to review WOTUS, not a Court of Appeals. You would think EPA could have figured this out as well.
(This article first ran on February 15, 2018 in Farm Futures)