On January 22, 2018, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts.  At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent. 

After all, the Clean Water Act does assign jurisdiction to the district courts of all cases under the Act other than in seven specifically identified categories, for which cases are assigned to the circuit courts.  The government argued that two categories applied, actions either:

approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, [or] issuing or denying any permit under section 1342 of this title.

It seems pretty clear that a rule defining what constitutes a water of the United States is not an action promulgating an effluent limitation or other limitation – particularly when the WOTUS Rule itself states that it “imposes no enforceable duty.”  It seems even more clear that promulgation of the Rule was not the issuance of a permit – under section 1342 or any other section.

Thus, the challengers could easily have won under the “give me a break” doctrine of statutory interpretation.  And, by the way, it appears that “give me a break” was the tenor of most of the justices’ questions at oral argument.

The government had only one real argument in its favor:  sending these cases to the district courts is just plain nuts.  And it’s worth noting that the “just plain nuts” argument had triumphed over the “give me a break” argument in almost all of the lower courts to decide the issue.

The Supreme Court, however, sits on a higher throne.  It does not need to get its hands dirty with the practicalities of lower court review.  And, in fairness, it has an obligation to interpret the statute as it is written; it does not have an unlimited brief to fix all the mistakes made by Congress.

It’s good to be king.  In a democracy with separation of powers, it’s good to be the Supreme Court.