Neither Trump nor Obama wanted the Supreme Court to hear this case

The case will determine which courts can hear challenges about what bodies of water fall under the Clean Water Act.
October 1, 2017, 9:26am

The Supreme Court will hear oral arguments this term, which begins Monday, for a case that neither President Donald Trump nor former President Barack Obama wanted the justices to take on.

The case itself, National Association of Manufacturers v. Department of Defense, is a little arcane. It’ll determine which courts can hear challenges about what bodies of water fall under the Clean Water Act, a federal law established in 1972 to regulate discharging pollutants into U.S. waters. What’s interesting, however, is that support for the case doesn’t cut along partisan lines. In fact, both Trump and Obama have argued the Supreme Court shouldn’t hear it at all.

In 2015, Obama announced the Clean Water Rule, which sought to clarify which bodies of water fall under the Clean Water Act. Until that point, the only definition was that they’re “navigable,” which environmental groups and industry titans quibbled over.

Under Obama’s rule, the Clean Water Act would definitively protect about 2 million miles of streams and 20 million acres of wetlands. But the move drew criticism from both sides — for being a prime case of regulatory overreach and on the other hand, for not going far enough.

Then, the National Association of Manufacturers sued the Department of Defense, whose Army Corps of Engineers is responsible for enforcing the rule. “Under the guise of providing ‘clarity,’” the association wrote in a press release, “the EPA and the Corps have expanded the federal government’s reach into manufacturers’ on-site activities.”

Now that the High Court is hearing the case, some environmental organizations — like Earthjustice, an environmental law organization — are siding with the National Association of Manufacturers. Environmentalists hope to expand the Clean Water Rule’s scope and enforce it at the local level, while the Manufacturers’ association thinks it can more effectively challenge the rule there.

As the debate plays out at the Supreme Court, the Trump administration is trying to get rid of the Clean Water Rule entirely. When the government wants to change an environmental rule, it has to give the public a chance to submit comments, usually online. The Trump administration asked the justices to hold off on hearing the case until that’s done.

In fact, Trump spoke to the National Association of Manufacturers on Friday. “We are returning the EPA to its core mission: clean air and crystal clean water,” he said during the event. “That’s what we want. We want clean air. We want clean water.”

For his part, Obama wanted the appellate courts to hear the cases about the rule, which would make it easier for the to the rule to be upheld nationally. When the Sixth Circuit Court of Appeals ruled that it should be the court to hear challenges to the Clean Water Rule, his administration filed a brief agreeing that the the appellate court held jurisdiction over the rule — so the Supreme Court wouldn’t have to hear it.

But now, the Supreme Court will on Oct. 11.