Chamber of Commerce of the United States v. United States Environmental Protection Agency

709 F. App'x 526

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 29, 2018
• Docket: No. 16-5038, No. 16-5039
• Status: Published

Opinion

ORDER AND JUDGMENT

*

Per Curiam

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 696 (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 491626, at *4 (Jan. 22,2018).

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

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel, It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.