It often has been said that when a new Justice joins the Supreme Court, the Court becomes an entirely new Court.  On October 6, 2018, the U.S. Senate by a vote of 50-48 confirmed Brett Kavanaugh to be an Associate Justice on the U.S. Supreme Court.  Justice Kavanaugh replaced Justice Anthony Kennedy whose retirement became effective on July 31, 2018. Because Justice Kennedy was a swing vote in many important cases, including the Court’s landmark 2007 Massachusetts v. EPA decision, his retirement and replacement by Justice Kavanaugh is likely to have a significant effect on the future of environmental law.  This presentation will examine environmental cases the Court decided in 2018, cases currently on its docket and others likely to come before it, and how Justice Kavanaugh’s promotion to the Court may affect the future of environmental law. 

In 2018 the U.S. Supreme Court decided a Clean Water Act case, two interstate water disputes, and an Endangered Species Act case. It also affirmed by an equally divided Court, due to Justice Kennedy’s recusal, a Ninth Circuit decision requiring the state of Washington to improve culvert drainage to protect tribal fishing rights established by treaty. 

On January 22, 2018 the Court decided National Association of Manufacturers v. Department of Defense, 138 S.Ct. 617 (2018).  In this case the Court held unanimously that legal challenges to the U.S. Environmental Protection Agency’s “waters of the United States” rule clarifying the reach of federal jurisdiction under the Clean Water Act should be filed first in federal district courts instead of in the U.S. Courts of Appeal. 

On March 5, 2018, the Court in Texas v. New Mexico, 138 S.Ct. 954 (2018), ruled that the federal government should be able to participate in an interstate water dispute. On the last day of its Term on June 27, 2018, the Court in a 5-4 split, rare for an original case, rejected a special master’s recommendation to dismiss Florida’s claim that Georgia is consuming too much water that otherwise would flow to it. Florida v. Georgia, 138 S.Ct. 2502 (2018). The Court held that the special master had required that Florida make too demanding a showing that a cap on Georgia’s water use would in fact redress its harm.

On October 1, 2018, the first day of its October 2018 Term, the Court heard oral argument in Weyerhauser v. U.S. Fish & Wildlife Service, a case challenging the inclusion of certain land in the critical habitat of an endangered Species.  On November 28, 2018, the Court unanimously (with new Justice Kavanaugh not participating in the decision) ruled that critical habitat designations are subject to judicial review, and it remanded the case to the Fifth Circuit to decide if the habitat designation decision was arbitrary, capricious, or an abuse of discretion. 139 S.Ct. 361 (2018).

The federal government repeatedly asked the Supreme Court to stop the trial of a lawsuit in federal district court in Oregon brought by young people who argue that the federal government breached its constitutional and public trust obligations by failing to protect them against the effects of climate change.  The Court initially refused to stay the proceedings, denying the government’s mandamus motion on July 30, 2018. United States v. U.S. District Court for Oregon, 139 S.Ct. 1 (2018). However, on October 19, 2018 Chief Justice Roberts issued a temporary stay that prevented the start of the trial.  In re United States, 139 S.Ct. 16 (2018). While the Court subsequently denied a second motion for mandamus, In Re United States, 139 S.Ct. 452 (2018), its expressions of skepticism concerning the merits of the case helped persuade the district court to certify the case for interlocutory review to the U.S. Court of Appeals for the Ninth Circuit. Juliana v. United States, 2018 WL 6303774.

Listed below are details concerning the environmental cases the Court decided in 2018, cases currently before the Court and others that later may come before it.

I. Cases Decided by the Supreme Court in 2018


Citation: 138 S.Ct. 617 (2018)

Decision Below: 817 F.3d 261 (6th Cir. 2016)

Cert granted: January 13, 2017

Argued: October 11, 2017

Decided: January 22, 2018 

Question Presented: Whether the U.S. Court of Appeals for the 6th Circuit erred when it held that it has jurisdiction under 33 U.S.C. § 1369(b)(1)(F), the portion of the Clean Water Act's judicial review provision that requires that agency actions “in issuing or denying any permit” under Section 1342 be reviewed by the court of appeals, to decide petitions to review the “waters-of-the-United-States” rule, even though the rule does not “issu[e] or den[y] any permit” but instead defines the waters that fall within Clean Water Act jurisdiction.

This case was the product of challenges to the Obama administration’s “waters of the U.S.” (WOTUS) rule, which sought to bring much-needed clarity to the reach of federal jurisdiction under the Clean Water Act in the aftermath of the Court’s 4-1-4 split in Rapanos v. U.S., 547 U.S. 715 (2006).  After the WOTUS rule, which was jointly promulgated by EPA and the U.S. Army Corps of Engineers, became final in 2015, 80 Fed. Reg. 37054, lawsuits challenging the rule were filed in several federal district courts and U.S. Courts of Appeals.  The challenges filed in the U.S. Courts of Appeal were consolidated in the Sixth Circuit.  While expressing some doubts concerning whether it was the proper venue for filing initial challenges to the rule, a panel of the Sixth Circuit refused to dismiss the case for lack of jurisdiction and issued a nationwide stay of the WOTUS rule.  In re Dept. of Defense, 817 F.3d 261 (6th Cir. 2016).

A week before President Trump took office, the Supreme Court agreed to review the Sixth Circuit’s decision at the behest of petitioner National Association of Manufacturers.  Shortly thereafter President Trump issued an executive order directing EPA and the Corps to consider revising or rescinding the WOTUS rule.  Exec. Order 13778, 82 Fed. Reg. 12497 (2017).  The government then asked the Court to put the case on hold pending its reconsideration of the WOTUS rule.  On April 3, 2017, the Supreme Court denied this motion.


On January 22, 2018 the Supreme Court reversed the Sixth Circuit and decided that proper venue for challenges to the “waters of the U.S.” rule lies in the federal district courts and not the U.S. Courts of Appeal.  Justice Sotomayor wrote the opinion for a unanimous Court. The Court held that the plain language of the judicial review and venue provisions in § 509(b) of the Clean Water Act, 33 U.S.C. §1369(b), does not provide for the filing of initial petitions for review in the Courts of Appeal because the rule was not among the categories of actions for which the statute specified such venue. A copy of the decision can be downloaded from the Supreme Court’s website  at:

WASHINGTON v. UNITED STATES, 138 S.Ct. 1832 (2018)

Decision Below: U.S. v. Washington, 853 F.3d 946 (9th Cir. 2017)

Cert granted: January 12, 2018

Argued: April 18, 2018

Decided: June 11, 2018

Justice Kennedy recused himself from the case

Petitioner’s Description of Case:

In a series of treaties, the federal government promised northwest Indian tribes ‘[t]he right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens.’ This Court has held that this language guarantees the tribes ‘a fair share of the available fish,’ meaning fifty percent of each salmon run, revised downward ‘if tribal needs may be satisfied by a lesser amount.’ Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685 (1979).

In this case, the Ninth Circuit held that the treaties instead guaranteed ‘that the number of fish would always be sufficient to provide a 'moderate living' to the Tribes.’ On that basis, the panel held that the treaties require Washington to replace culverts under state roads that restrict salmon passage. The court ordered the State to replace hundreds of culverts, at a cost of several billion dollars, even though it is undisputed that: (1) the federal government-the lead Plaintiff-specified the design and granted permits for the overwhelming majority of culverts at issue; and (2) many culvert replacements will have no benefit for salmon because of other non-State owned barriers to salmon on the same streams.”

Questions Presented:

(1) Whether the treaty “right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.”

(2) Whether the district court erred in dismissing the State's equitable defenses against the federal government where the federal government signed these treaties in the 1850's, for decades told the State to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violated the treaties it signed.

(3) Whether the district court's injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon and Plaintiffs showed no clear connection between culvert replacement and tribal fisheries.


In March 2018, the Court announced that Justice Kennedy has recused himself from this case because of his participation in a 1985 Ninth Circuit decision that presented a similar question. On June 11, 2018, the Court announced that the decision below had been affirmed by an equally divided Court.

TEXAS v. NEW MEXICO, 138 S.Ct. 954 (2018)

First Interim Report of Special Master Filed: Feb. 13, 2017

Exceptions to Special Master’s Report Filed: June 9, 2017

Jurisdiction Noted: October 10, 2017

Argued: January 8, 2018

Decided: March 5, 2018

Transcript of the oral argument available at:

Exception: The United States excepts to the Special Master's recommendation that the United States' complaint in intervention should be dismissed to the extent that it asserts claims under the Rio Grande Compact, approved by Congress in 1939. 

In January 2013 the state of Texas sued New Mexico and Colorado, arguing that they are violating the Rio Grande Compact of 1938 that governs distribution among the three states of water from the Rio Grande. The river originates in Colorado, crosses New Mexico where it is dammed at Elephant Butte, a dam operated by the U.S. Bureau of Reclamation’s Rio Grande Project, and later flows into Texas.  Texas alleges that New Mexico has violated the Compact by diverting water and pumping groundwater hydrologically connected to the Rio Grande downstream of Elephant Butte.  New Mexico argues that its only obligation under the Compact is to deliver water to Elephant Butte. Texas maintains that New Mexico also is allowing its residents to take water downstream from Elephant Butte that is reserved for Texas.

In March 2014 the Court granted the motion of the U.S. to intervene in the litigation in support of Texas.  In November 2014 the Court appointed a special master to gather evidence and to report back to it. In February 2017 Special Master A. Gregory Grimsal filed his first report with the Court which finds that U.S. complaint is too broad because the U.S. is not a party to the Rio Grande Compact between the three states.  Colorado argues that the Court should limit the claims of the United States to those based on the 1906 Convention between the United States and Mexico for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes. In June 2017 New Mexico, Colorado and the U.S. filed exceptions to the special master’s report, which were considered by the Court at oral argument on January 8, 2018. 


On March 5, 2018, the Court unanimously sustained the exception of the U.S. and held that the U.S. may pursue the Compact claims it has pleaded in this action.  In an opinion by Justice Gorsuch, the Court noted that it sometimes has permitted the federal government to participate in compact suits to defend “distinctively federal interests.”  The Court cited four reasons for authorizing the U.S. to pursue these claims: (1) “the Compact is inextricably intertwined with the Rio Grande Project and the Downstream Contracts,” (2) “New Mexico has conceded in pleadings and at oral argument that the United States plays an integral role in the Compact’s operations,” (3) “a breach of the Compact could jeopardize the federal government’s ability to satisfy its treaty obligations to Mexico,” and (4) the U.S. is asserting “its Compact claims in an existing action brought by Texas, seeking substantially the same relief and without that State’s objection.”

FLORIDA v. GEORGIA, No. 142 Original

Special Master’s Report Issued: Feb. 14, 2017

Jurisdiction Noted: October 10, 2017 

Argued: January 8, 2018

Decided: June 27, 2018

In the latest chapter in a long-running dispute involving water in the Apalachicola-Chattahoochee-Flint River basin, the state of Florida sued Georgia in October 2013. Florida argues that Georgia is consuming too much water from the Chattahoochee and Flint Rivers which combine to form the Apalachicola River that flows into the Florida panhandle and Apalachicola Bay.  These reduced flows, Florida argues, have greatly harmed the Bay, causing the collapse of its oyster fishery.  Florida sought equitable apportionment of the water supply and an order capping Georgia’s overall depletive water uses.

In November 2014 the Court appointed Ralph I. Lancaster to serve as special master. Georgia argued that Florida’s complaint should be dismissed because it failed to join as a party the U.S. Army Corps of Engineers, which operates dams and reservoirs that control much of the flow of the Chattahoochee and Flint Rivers.   In late 2016 the special master held a lengthy trial.

In February 2017 the special master filed his report.  The report stated that Florida should be denied relief because it had not met a heavy burden of showing that an order restricting Georgia’s water use would grant it redress.  The special master concluded that Florida had “not proven by clear and convincing evidence” that restricting Georgia’s water consumption would improve the river flows during drought. He concluded that because the Corps of Engineers was not a party to the case, Florida had not demonstrated that its harm was redressable. In its exceptions to the Special Master’s Report, Florida argues that the special master’s standard for establishing redressability was too high and that its harm is redressable.


On June 27, 2018, the Court by a 5-4 vote rejected the special master’s recommendation to dismiss Georgia’s complaint.  In an opinion written by Justice Breyer, the Court held that the special master had required Florida to make too demanding a showing that a cap on Georgia’s water use would redress its harm.  Justice Breyer’s opinion was joined by Chief Justice Roberts and Justices Kennedy, Ginsburg and Sotomayor.


Decision Below: Markle Interests, LLC v U.S. Fish & Wildlife Service, 827 F.3d 452 (5th Cir. 2016)

Cert granted: January 22, 2018

Argued: October 1, 2018

Decided: November 27, 2018

Petitioner’s Description of the Case: Congress enacted the Endangered Species Act to conserve ‘ecosystems upon which endangered species . . .depend.’ 16 U.S.C. § 1531(b). To that end, the Act requires the Secretary of the Interior to ‘designate any habitat of such species which is then considered to be critical habitat.’ Id. § 1533(a)(3)(A). ‘Critical habitat’ may include areas ‘occupied by the species,’ as well as ‘areas outside the geographical area occupied by the species’ that are determined to be ‘essential for the conservation of the species.’ Id. § 1532(5)(A).

The Fish and Wildlife Service designated as critical habitat of the endangered dusky gopher frog a 1500-acre tract of private land that concededly contains no dusky gopher frogs and cannot provide habitat for them absent a radical change in land use because it lacks features necessary for their survival. The Service concluded that this designation could cost $34 million in lost development value of the tract. But it found that this cost is not disproportionate to ‘biological’ benefits of designation and so refused to exclude the tract from designation under 16 U.S.C. § 1533(b)(2). A divided Fifth Circuit panel upheld the designation.

Questions Presented: 

(1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation.

(2) Whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.


On November 27, 2018, the Court, without the participation of newly confirmed Justice Kavanaugh, unanimously vacated and remanded the Fifth Circuit’s decision.  139 S.Ct. 361 (2018). The Court held that the decision by the Secretary of Interior not to exclude an area from designation as critical habitat is subject to judicial review.  The Court instructed the Fifth Circuit to consider whether the Fish and Wildlife Service’s assessment of the costs and benefits of designating Weyerhaeuser’s land as critical habitat was arbitrary, capricious, or an abuse of discretion.

III. Environmental Cases the Court Is Reviewing during its 2018-19 Term


Decision Below: 848 F.3d 590 (4th Cir. 2017)

Cert petition filed: April 21, 2017

Court calls for the views of the U.S.: Oct. 2, 2017

On April 11, 2018 the Solicitor General filed an amicus brief recommending that cert be granted.

Cert granted: May 21, 2018

Argued: November 5, 2018

Question Presented: Does the Atomic Energy Act preempt a state law that on its face regulates an activity within its jurisdiction (here uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the NRC (here, the milling of uranium and the management of the resulting tailings)?

Conclusion in Solicitor General’s Amicus Brief: “Respondents have conceded that, for purposes of their motion to dismiss, the courts should take as true petitioners’ allegation that the Virginia moratorium was motivated by radiological-safety concerns. This Court therefore need not decide what evidence would be necessary or sufficient to prove those allegations. Rather, the Court need only decide whether such a motivation, if proved, would provide a sound basis for holding the Virginia moratorium to be preempted, even though the immediate object of the moratorium (uranium mining) is an activity subject to state rather than federal regulation.”

STURGEON v. FROST, No. 17-949

This is the second time the Court has heard a challenge by a moose hunter in Alaska to an effort by the U.S. National Park Service to enforce its ban on motorized vehicles on the use of his hovercraft on the Nation River.

Initial Decision Below: Sturgeon v. Massica, 768 F.3d 1066 (9th Cir.2014)

Initial Grant of Cert.: October 1, 2015

Initial Question Presented: Whether Section 103(c) of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) prohibits the National Park Service from exercising regulatory control over State, Native Corporation, and private Alaska land physically located within the boundaries of the National Park System.

First Supreme Court Decision: Sturgeon v. Frost, 136 S.Ct. 1061 (2016)

In March 2016 the Court held unanimously rejected the Ninth Circuit’s interpretation of Section 103(c) of ANILCA.  The Court held that land within conservation system units in Alaska may be treated differently from other federally managed preservation areas across the country.  However, the Court did not decide whether the Nation River on which Sturgeon operated his hovercraft qualifies as land that may be regulated by the National Park Service (NPS). It remanded the case to the lower courts to decide this issue. After the lower courts upheld the authority of the NPS to regulate Mr. Sturgeon’s hovercraft, he again sought and obtained review in the U.S. Supreme Court.

New Decision Below: Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017)

Second Cert petition filed: January 2, 2018

Cert granted again: June 18, 2018

Argued: November 5, 2018

Question Presented: Whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over State, Native Corporation, and private land physically located within the boundaries of the National Park System in Alaska.


Decision Below: Knick v. Township of Scott, 862 F.3d 310 (3d Cir. 2017)

Cert granted: March 5, 2018

Argued: October 3, 2018

On November 2, 2018 the Court issued an order scheduling the case for reargument and directing the parties to file letter briefs addressing the petitioner’s second argument for vacatur.

Reargued: January 16, 2019

Question Presented: Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) that requires property owners to exhaust state court remedies to ripen federal takings claims.

In this case a township in Pennsylvania enacted an ordinance authorizing officials to enter any property in the township to determine the presence of gravesites and requiring property owners to hold private cemeteries open to the public during daylight hours.  The owner of property on which ancient grave markets were found sued to challenge the ordinance as a taking for which the government was required to provide just compensation.  While describing the ordinance as “extraordinary and constitutionally suspect,” the Third Circuit upheld dismissal of the case because the property owner had failed to bring an inverse condemnation action to seek compensation under state law, a prudential requirement established in Williamson.  This case may have significance for environmental practice because reversal of Williamson’s exhaustion of requirement would make it easier to bring takings claims in environmental cases.

IV. Other Cases Court Has Agreed to Review That May Have Environmental Implications


Decision Below: 860 F.3d 703 (D.C. Cir. 2017)

Cert granted: May 21, 2018

Argued: October 31, 2018

Question Presented: Whether the International Organizations Immunities Act-which affords international organizations the "same immunity" from suit that foreign governments have, 22 U.S.C. § 288a (b), confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.

KISOR v. WILKIE, NO. 18-15

Decision Below: 869 F.3d 1360 (Fed. Cir. 2017).

Cert granted: Dec. 10, 2018

To be argued: Spring 2019 (precise date to be announced)

Question Presented: What deference, if any, should courts give to an agency interpretation of its own regulations that has not itself gone through notice and comment rulemaking under the Administrative Procedure Act? Should the Court overrule Auer v. Robbins and Bowles v. Seminole Rock and Sand Co.?

  1. V.Case to Be Argued in October 2019


Petition for Cert filed: August 27, 2018

Decision Below: Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018).

Question Presented: Whether discharge of pollutants from wells into groundwater hydrologically connected to the ocean constituted a discharge for which a federal Clean Water Act permit was required.

On December 3, 2018 the Court asked for the views of the Solicitor General to be filed in a brief due by January 4, 2019.

On January 3, 2019 the Solicitor General, without taking a position on the merits, recommended that cert be granted to resolve a conflict in the Circuits.

On February 18, 2019 the Court announced that it had granted cert in this case, which likely will be argued in October 2019.

VI. Notable Cert Petitions Pending in Environmental Cases


Petition for Cert filed: August 28, 2018

Decision Below: Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, L.P. and Plantation Pipeline Co., 887 F.3d 637 (4th Cir. 2018), petition for rehearing denied by a 7-5 vote on May 30, 2018.

Questions Presented: (1) Whether the Clean Water Act’s permitting requirement is confined to discharges from a point source to navigable waters, or whether it also applies to discharges into soil or groundwater whenever there is a “direct hydrological connection” between the groundwater and nearby navigable waters.  (2) Whether an “ongoing violation” of the Clean Water Act exists for purposes of the Act’s citizen-suit provision when a point source has permanently ceased discharging pollutants, but some of the pollutants are still reaching navigable water through groundwater.

On December 3, 2018 the Court asked for the views of the Solicitor General to be filed in a brief due by January 4, 2019.

On January 3, 2019 the Solicitor General, without taking a position on the merits, recommended that this case be held pending disposition of the County of Maui case (above) in which he recommended a cert grant. Now that the Court has granted cert in the Maui case (see above), it is likely that this cert petition will be held until after the Court issues its decision in the Maui case.


Decision Below: Atlantic Richfield Co. v. Montana Second Judicial District Court, Supreme Court of Montana (2017)

Questions Presented: EPA ordered a former smelter site to be cleaned up as per the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Landowners near the site brought action against the site owner for restoration damages and other claims. Montana state court dismissed, and the landowner appealed. The Supreme Court of Montana affirmed and reversed in part, forcing a remand. On remand, the Montana state court denied site owner’s motion for summary judgment as to the claim for restoration damages and granted the landowner’s motion for summary judgment. Site owner petitioned for a writ of supervisory control, where the Supreme Court of Montana held (1) landowners claim for restoration damages arose solely under state common law and did not challenge CERCLA cleanup, and (2) landowners were not “potentially responsible parties” under CERCLA. (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally-barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

On October 1, 2018 the Court asked for the views of the Solicitor General

VII. Notable Environmental Cases in Which the Supreme Court Denied Review



Decision Below: People v. Conagra Grocery Products Co. and The Sherwin-Williams Co., 17 Cal. App. 5th 51 (Calif. Ct. of Appeals 2017)

Questions Presented: Whether the First Amendment permits California to impose tort liability for truthfully promoting lead-based paint, a lawful product that it finds to be hazardous in some uses? Whether the Due Process Clause allows a state to impose retroactive public nuisance liability to inspect and abate millions of residences based on decades-old promotions without evidence that consumers relied on those promotions or that petitioner’s lead paint is in any residence?

Cert Denied: Oct. 15, 2018


Decision Below: Mexichem Fluor, Inc v. Environmental Protection Agency 866 F.3d 451 (D.C. Cir. 2017). This decision by Judge Kavanaugh and its implications for the new Justice’s views on administrative law are discussed in Robert V. Percival, Judge Kavanaugh’s Activist Vision of Environmental Law, The Regulatory Review, Sept. 4, 2018,

Question Presented: Whether, under the “safe alternatives policy” of Section 612 of the Clean Air Act, the Environmental Protection Agency lacks authority to prohibit the use of a less-safe substitute for an ozone-depleting substance in favor of a safer alternative, just because a company has already begun using the less-safe substitute.

Whether the Environmental Protection Agency has authority under Section 612 of the Clean Air Act to prohibit the use of dangerous but non-ozone-depleting substitutes by any person, including by product manufacturers who began using such substitutes before the EPA placed them on the prohibited list.

Cert Denied: Oct. 9, 2018

VIII. Lower Court Cases that Eventually May Reach the Supreme Court


Prior to the Supreme Court’s decision in National Association of Manufacturers v. Department of Defense, 2018 WL 491526 (2018), thirteen states had challenged the WOTUS rule in federal district court in North Dakota.  That court in 2015 issued a stay of the rule in the states that had challenged it (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming).  North Dakota v. EPA, 127 F. Supp. 3d 1047 (N.D. 2015).  Now that the Supreme Court has ruled that legal challenges to the WOTUS rule initially must be brought in federal district courts, additional litigation has commenced in federal district courts in Georgia, New York, Texas and South Carolina.  On June 12, 2018 a federal district court in the Southern District of Georgia issued an injunction staying the rule in 11 states (Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky).

Faced with the dissolution of the Sixth Circuit’s nationwide injunction staying the WOTUS rule, EPA on February 6, 2018, extended the effective date of the rule to February 6, 2020.  EPA states that this will give it time to revise or rescind the rule before it takes effect. On August 16, 2018 a federal district court in South Carolina held this extension violated the Administrative Procedure Act because EPA had not solicited public comment on it.  South Carolina Coastal Conservation League v. Wheeler, No. 2-18-cv-330-DCN (D.S.C. 2018).  This decision effectively reinstated the WOTUS rule in the 26 states in which it has not been enjoined.  On Sept. 11, 2018, a federal judge in the southern district of Texas enjoined application of the WOTUS rule in the states of Texas, Louisiana, and Mississippi.  On December 11, 2018, EPA and the Corps of Engineers proposed a revised definition of “waters of the U.S.”


West Virginia v. EPA, No. 15-1363 and consolidated cases (D.C. Circuit)
Oral Argument Held: September 27, 2016 (en banc)

On April 28, 2017, the D.C. Circuit issued an order holding the case in abeyance while the Trump EPA moves to repeal the Clean Power Plan.

These lawsuits challenge the legality of the Obama administration’s Clean Power Plan, "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," 80 Fed. Reg. 64,662 (October 23, 2015).  After the D.C. Circuit denied a stay of the rule on January 21, 2016, the petitioners sought a stay from the U.S. Supreme Court.  In an unprecedented action, on February 9, 2016 the Supreme Court by a 5-4 vote stayed the regulations.  The legal challenges to the Clean Power Plan were argued before the D.C. Circuit sitting en banc on September 27, 2016.  The court decided to take the case en banc on its own motion.  Ten of the court’s eleven judges in regular service (all but then Supreme Court nominee Merrick Garland) heard the arguments.  On April 28, 2017, the D.C. Circuit agreed to the request of EPA to hold the case in abeyance while the Trump administration seeks to repeal the Clean Power Plan. On October 10, 2017, EPA issued a Federal Register notice proposing to repeal the Clean Power Plan on the grounds that it exceeds EPA’s statutory authority under a proposed change in the Agency’s interpretation of section 111 of the Clean Air Act. On December 18, 2017, EPA issued an advance notice of proposed rulemaking seeking comment on an alternative regulatory approach to the Clean Power Plan that would be consistent with the agency’s new legal interpretation of section 111. In August 2018, EPA issued its proposed rule to replace the Clean Power Plan.

JULIANA v. U.S., No. 6:15-cv-01517-TC (D. Oregon)

On interlocutory review before the U.S. Court of Appeals for the Ninth Circuit

In November 2016 a federal district court in Oregon rejected a motion to dismiss a “future generations” climate change lawsuit against the President and top U.S. officials.  Juliana v. U.S., 217 F.Supp.3d 1224 (D. Ore. 2016). The plaintiffs, who include 21 people then between the ages of eight and nineteen, allege that the federal government knew about the dangers of climate change for more than 50 years, but failed to take action to protect them.  The children argue that this violated their substantive due process rights to life, liberty and property as well as the government’s public trust obligations to hold natural resources in trust for future generations. The plaintiffs seek a declaration that their rights have been violated and an order requiring federal officials to develop a plan to control emissions of greenhouse gases.

The court rejected the government’s arguments that the case raises a non-justiciable political question and that the plaintiffs lack standing.  Federal district Judge Ann Aiken distinguished Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013), a case where an environmental group was held not to have standing to challenge a permit for a refinery for contributing to climate change.  She noted that on a motion for summary judgment the court must accept the plaintiffs’ allegations of injury and causation as true and that the lawsuit seeks to redress much more significant sources of GHG emissions than the refineries whose permitting was challenged in Bellon.  The court also held that plaintiffs had adequately pleaded substantive due process and public trust violations by the federal government.

The Justice Department then petitioned the Ninth Circuit for a writ of mandamus to halt discovery and any trial, arguing that the federal government should not be subject to burdensome discovery when the plaintiffs have failed to state a justiciable claim.  On March 7, 2018, a panel of Ninth Circuit judges denied without prejudice the federal government’s motion for a writ of mandamus. In re United States, 884 F.3d 830 (9th Cir. 2018). The court held that the federal government had not met the “high bar for mandamus relief” at this stage of the litigation.  It observed that it was “mindful that some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies plaintiffs seek may not be available as redress.” But the court left it for the district court to develop the record and to consider the claims raised by the plaintiffs.  On July 30, 2018, the U.S. Supreme Court refused the federal government’s request to stay discovery and the upcoming trial.  United States v. U.S. District Court for Oregon, 139 S.Ct. 1 (2018).  Like the Ninth Circuit, the Court cautioned that the “breadth of respondents’ claims is striking, and it opined that “the justiciability of those claims presents substantial grounds for difference of opinion.”  The Court’s order denying a writ of mandamus advised the federal district court hearing the case to “take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.”

On October 15, 2018, the district court again largely denied the government’s dispositive notions and confirmed that an anticipated 50-day trial would commence on October 29.  The federal government then sought from both the Ninth Circuit and the Supreme Court a writ of mandamus ordering the district court to dismiss the case.  On October 19, 2018, Chief Justice John Roberts granted an administrative stay of discovery and trial pending the Court’s disposition of the government’s mandamus motion.  In re United States, 139 S.Ct. 16 (2018). On November 2, the Court vacated the stay, but pointedly placed pressure on the Ninth Circuit to intervene.  In Re United States, 139 S.Ct. 452 (2018). The Court noted that the government’s mandamus petition also was before the Ninth Circuit. Although the Ninth Circuit previously had denied two mandamus motions by the government, the Ninth Circuit’s “basis for denying relief rested, in large part, on the early stage of the litigation, the likelihood that plaintiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions.” The Supreme Court stated that these reasons were, “to a large extent, no longer pertinent” since the trial had been held in abeyance only because of the Chief Justice’s stay. Justices Thomas and Gorsuch stated that they would have granted the stay.

In response, the Ninth Circuit on November 8 issued its own stay of the district court proceedings and it directed Judge Aiken promptly to resolve the government’s motion for reconsideration of the denial of a request to certify the case for interlocutory review.  Judge Aiken then reluctantly agreed on November 21, 2018 to certify the case for interlocutory review. Juliana v. United States, 2018 WL 6303774. On January 7, 2019, the Ninth Circuit agreed to hear the government’s appeal of the denial of its motion to dismiss.  Judge Friedland dissented from the decision to grant interlocutory review because he believed that the district judge did not truly believe that interlocutory review was warranted, but rather had responded to pressure from the higher courts. The case will be heard by the Ninth Circuit on an expedited basis with the government’s opening brief due on February 1.