Who should hear cases on industry challenges to EPA and the Army Corp of Engineers’ definition of “navigable waters?” Federal district courts or the court of appeals? Federal government attorneys argue that a “pragmatic construction” of the Clean Water Act would send cases with broad policy implications to one of the thirteen appeals courts, rather than risk fragmented litigation in potentially dozens of trial courts across the country. The Supreme Court is scheduled to take up this question soon, in National Association of Manufacturers v. Department of Defense.
Professor Richard Lazarus examines what effect Justice Gorsuch’s appointment might have on the outcome of this case, and on environmental law itself, in his recent article for The Environmental Forum. In “Will Justice Gorsuch on Water Act Prove Different Than Scalia Would?” Lazarus notes “the case will offer an early opportunity for Justice Gorsuch to express his views on the role of courts in construing statutes.” October 2nd, First Monday, may provide a hint.