By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA
The U. S. Supreme Court’s decision in U. S. Army Corps of Engineers (Corps) v. Hawkes Co., Inc. could be a positive omen for ARTBA’s separate federal court challenge to environmental regulations.
In a unanimous May 31 ruling, the Court held that “jurisdictional determinations” (JDs) by the Corps may be challenged in court. The Corps uses JDs to determine whether or not a particular piece of land can be regulated by the federal Clean Water Act (CWA), and therefore subject to Corps and U.S. Environmental Protection Agency (EPA) jurisdiction. Prior to the ruling, the Corps had held that landowners could not challenge JDs once the determination was made.
In ruling that landowners do have the right to challenge a JD, the Court noted that the CWA “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”
The statement appears to indicate the Court’s concern about the overall reach of the CWA, an issue linked directly to ARTBA’s challenge of EPA’s controversial “waters of the U.S.” (WOTUS) rule. ARTBA’s litigation is still in a very early phase at the 6th U. S. Court of Appeals, where jurisdictional issues are being determined. Whatever the decision at the appellate level, the issue is expected to eventually reach the Supreme Court.
The Court’s skepticism in the Hawkes decision could extend to a WOTUS challenge.