CHAMBER OF COMMERCE OF UNITED STATES v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (2018)

United States Court of Appeals, Tenth Circuit.

CHAMBER OF COMMERCE OF the UNITED STATES of America; National Federation of Independent Business; Tulsa Regional Chamber; Portland Cement Association; State Chamber of Oklahoma, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; E. Scott Pruitt, in his official capacity as Administrator of the United States Environmental Protection Agency; United States Army Corps of Engineers; Jo-Ellen Darcy, in her official capacity as Assistant Secretary of the Army (Civil Works), Defendants-Appellees.
Pacific Legal Foundation; Cato Institute; Southeastern Legal Foundation; State of Alabama; State of Alaska; State of Arizona; State of Arkansas; State of Colorado; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Kentucky; State of Louisiana; State of Michigan; State of Mississippi; State of Missouri; State of Nebraska; New Mexico State Engineer; New Mexico Environment Department; State of Nevada; North Carolina Department of Environmental Quality; State of North Dakota; State of Ohio; State of South Carolina; State of South Dakota; State of Tennessee; State of Texas; State of Utah; State of West Virginia; State of Wisconsin; State of Wyoming; American Road and Transportation Builders Association; The American Farm Bureau Federation; American Forest & Paper Association; American Petroleum Institute; Greater Houston Builders Association; Leading Builders of America; National Alliance of Forest Owners; National Association of Home Builders; National Association of Manufacturers; National Association of Realtors; National Cattlemen’s Beef Association; National Corn Growers Association; National Mining Association; National Pork Producers Council; National Stone, Sand & Gravel Association; Public Lands Council; Texas Farm Bureau; U.S. Poultry & Egg Association, Amici Curiae. State of Oklahoma ex rel. Mike Hunter, in his official capacity as Attorney General of Oklahoma, Plaintiff-Appellant, v. United States Environmental Protection Agency; United States Army Corps of Engineers; E. Scott Pruitt, in his official capacity as Administrator of the United States Environmental Protection Agency; Jo-Ellen Darcy, in her official capacity as Assistant Secretary of the Army for Civil Works, Defendants-Appellees. Pacific Legal Foundation; Cato Institute; Southeastern Legal Foundation; State of Alabama; State of Alaska; State of Arizona; State of Arkansas; State of Colorado; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Kentucky; State of Louisiana; State of Michigan; State of Mississippi; State of Missouri; State of Nebraska; New Mexico State Engineer; New Mexico Environment Department; State of Nevada; North Carolina Department of Environmental Quality; State of North Dakota; State of Ohio; State of South Carolina; State of South Dakota; State of Tennessee; State of Texas; State of Utah; State of West Virginia; State of Wisconsin; State of Wyoming; American Road and Transportation Builders Association; The American Farm Bureau Federation; American Forest & Paper Association; American Petroleum Institute; Greater Houston Builders Association; Leading Builders of America; National Alliance of Forest Owners; National Association of Home Builders; National Association of Manufacturers; National Association of Realtors; National Cattlemen’s Beef Association; National Corn Growers Association; National Mining Association; National Pork Producers Council; National Stone, Sand & Gravel Association; Public Lands Council; Texas Farm Bureau; U.S. Poultry & Egg Association, Amici Curiae.

No. 16-5038, No. 16-5039

Decided: January 29, 2018

Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.

John J. Carwile, Atkinson, Haskins, Nellis, Brittingham, Gladd & Fiasco, Tulsa, OK, John Michael Connolly, William Consovoy, Thomas R. McCarthy, Consovoy McCarthy, Arlington, VA, Mary Elizabeth Kindelt, James P. McCann, McDonald, McCann, Metcalf & Carwile, Tulsa, OK, Steven P. Lehotsky, Warren Postman, U.S. Chamber Litigation Center, Washington, DC, Michael H. Park, Consovoy McCarthy Park, New York, NY, for Plaintiff-Appellant Chamber of Commerce of the United States of America John J. Carwile, Atkinson, Haskins, Nellis, Brittingham, Gladd & Fiasco, Tulsa, OK, John Michael Connolly, William Consovoy, Thomas R. McCarthy, Consovoy McCarthy, Arlington, VA, Karen R. Harned, NFIB Small Business Legal Center, Washington, DC, Andrew D. Herman, Miller & Chevalier Chartered, Washington, DC, Mary Elizabeth Kindelt, James P. McCann, McDonald, McCann, Metcalf & Carwile, Tulsa, OK, Michael H. Park, Consovoy McCarthy Park, New York, NY, Luke A. Wake, NFIB Small Business Legal Center, for Plaintiff-Appellant National Federation of Independent Business John J. Carwile, Atkinson, Haskins, Nellis, Brittingham, Gladd & Fiasco, Tulsa, OK, John Michael Connolly, William Consovoy, Thomas R. McCarthy, Consovoy McCarthy, Arlington, VA, Mary Elizabeth Kindelt, James P. McCann, McDonald, McCann, Metcalf & Carwile, Tulsa, OK, Michael H. Park, Consovoy McCarthy Park, New York, NY, for Plaintiffs-Appellants Tulsa Regional Chamber, Portland Cement Association, State Chamber of Oklahoma John David Gunter, II, Robert Lundman, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants-Appellees Julio N. Colomba, Anthony L. Francois, M. Reed Hopper, Mountain States Legal Foundation, Sacramento, CA, Kimberly S. Hermann, Southeastern Legal Foundation, Marietta, GA, Ilya Shapiro, Cato Institute, Washington, DC, for Amici Curiae Pacific Legal Foundation, Cato Institute, Southeastern Legal Foundation Eric Murphy, Office of the Attorney General for the State of Ohio, Columbus, OH, for Amici Curiae State of Alabama, State of Alaska, State of Arizona, State of Arkansas, State of Colorado, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Kentucky, State of Louisiana, State of Michigan, State of Mississippi, State of Nebraska, State of Nevada, North Carolina Department of Environmental Quality, State of North Dakota, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, the State of Wyoming, State of Ohio, State of Missouri Eric Murphy, Office of the Attorney General for the State of Ohio, Columbus, OH, Matthias L. Sayer, New Mexico Department of Game and Fish, Santa Fe, NM, for Amicus Curiae New Mexico State Engineer Lara Katz, New Mexico Environment Department, Office of General Counsel, Santa Fe, NM, Eric Murphy, Office of the Attorney General for the State of Ohio, Columbus, OH, for Amicus Curiae New Mexico Environment Department Timothy S. Bishop, Chad Clamage, Michael B. Kimberly, Mayer Brown, Chicago, IL, for Amici Curiae The American Farm Bureau Federation, American Forest & Paper Association, American Petroleum Institute, American Road and Transportation Builders Association, Greater Houston Builders Association, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Association of Realtors, National Cattlemen's Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council, National Stone, Sand & Gravel Association, Public Lands Council, Texas Farm Bureau, U.S. Poultry & Egg Association Matthew C. Forys, Richard Peter Hutchison, Mark R. Levin, Michael J. O'Neill, Landmark Legal Foundation, Kansas City, MO, for Amicus Curiae Landmark Legal Foundation

ORDER AND JUDGMENT *

Plaintiffs filed these actions in the United States District Court for the Northern District of Oklahoma to challenge a regulation issued by the Environmental Protection Agency defining the term “waters of the United States” for purposes of the Clean Water Act. The district court dismissed both cases, concluding that such challenges must be brought in the United States Circuit Court of Appeals pursuant to 33 U.S.C. § 1369(b)(1). We consolidated the subsequent appeals.

Following oral argument, the Supreme Court granted certiorari in a case raising the same issue. Nat’l Ass’n of Mfrs. v. Dep’t of Def., ––– U.S. ––––, 137 S.Ct. 811, 196 L.Ed.2d 595 (2017). We abated these appeals pending the Court’s decision in that case. The Supreme Court has now held that the regulation at issue “falls outside the ambit of § 1369(b)(1), and any challenges to the Rule therefore must be filed in federal district courts.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., ––– U.S. ––––, 138 S.Ct. 617, ––– L.Ed.2d ––––, 2018 WL 491526, at *4 (Jan. 22, 2018).

We accordingly LIFT the abatement, REVERSE, and REMAND to the district court for further proceedings.

Per Curiam

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