Plain Meaning or Pragmatics? Differing Interpretations of the Clean Water Act’s Jurisdictional Provisions

Abstract

There is significant discord among circuit courts over whether a broad or narrow construction of the Clean Water Act’s jurisdictional provisions is appropriate in determining when circuit courts should have direct jurisdiction to review petitions challenging regulations. The broad interpretation of these provisions emphasizes the practicality of direct circuit court review of a wider range of regulations, whereas the narrow interpretation uses the plain language. In Friends of the Everglades v. U.S. Environmental Protection Agency, the U.S. Court of Appeals for the Eleventh Circuit addressed this issue as applied to petitions for review of the “water transfer rule.” Adopting the plain language approach, the court held it did not have jurisdiction to review the petition because the challenged regulation was not within the jurisdictional provisions. The Supreme Court denied certiorari. This Comment notes that both approaches can benefit the environment but argues that the long-term implications of the plain language approach could be detrimental due to judicial inefficiency and a lack of consistent application of the law across districts.