The Quagmire Created by National Association of Manufacturers v. DOD

In January, the U.S. Supreme Court issued a 9-0 decision in National Association of Manufacturers v. Department of Defense. The Court held that lawsuits challenging the 2015 “Clean Water Rule”—which revised the regulatory definition of “waters of the United States” that are subject to federal regulation under the Clean Water Act (CWA)—must be brought in federal district courts and not the courts of appeals. This ruling, together with the Trump Administration’s strategy of using multiple rulemakings to rescind and replace the Clean Water Rule, has resulted in an increasingly complex tangle of litigation in district courts across the country. The upshot is continuing uncertainty on the scope of regulation under the CWA, an issue that is critical for many sectors of the economy and for environmental protection. How did this predicament come about? In June 2015, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers…

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